THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

IRVINE 

GIFT  OF 
J.    A,    C.    Grant 


\ 


,ijitmAf-_ 


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THE 


American  State  Reports, 

CONTAINIMO  THB 

CASES  OF  GENERAL  VALUE  AND  AUTHORITY, 

SUBSEQUENT  TO  THOSE   CONTAINED   IN  THE  "AMERICAN 
DECISIONS"  AND  THE  "AMERICAN  REPORTS," 

DKCIDBD  IN  THB 

COURTS  OF  LAST  RESORT 

OF   THE    SEVERAL   STATES. 

flLICTBD,   BEPORTSD,  AHD  ANVOTAXBO 

Bt  a.  C.  FREEMAN, 

Ain>  THB  ASSOCIATB  BDITORS  OF  THE  "AMBBICAN  DECISIONS.'* 


Vol.  I. 


SAN  FRANCISCO: 
BANCROFT-WHITNEY    COMPANY, 

Law  PaBusBBM  and  Law  BooKSBLLBRa. 

1888. 


V.i 


Eatered  according  to  Act  of  Congress  in  the  year  1888, 

By  BANCROFT-WHITNEY  COMPANY, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington* 


ANNOUNCEMENT. 


This  is  the  initial  volume  of  a  eeries  of  reports  which  com- 
mence at  the  period  where  the  American  Reports  were  discon- 
tinued, and  are  designed  to  extend  into  the  future  without 
limit.  The  scope  of  these  reports,  and  the  plan  upon  which 
they  will  he  edited  and  published,  will  be  substantially  the 
same  as  those  of  the  American  Decisions.  The  number  of 
volumes  will  be  limited  to  six  each  year.  This  number  will 
admit  of  the  selection  and  insertion  of  a  higher  percentage  of 
the  original  decisions  than  was  possible  in  the  publication  of 
either  the  American  Reports  or  the  American  Decisions,  while 
it  will  not  require  the  publication  of  anything  which  is  not  of 
permanent  and  general  importance. 

The  plan  which  it  is  proposed  to  pursue  in  this  series  of  re- 
ports may  be  considered  with  respect,  first,  to  the  reporting, 
and  second,  to  the  matter  to  be  reported. 

In  the  reporting,  an  effort  will  be  made, — 1.  To  educe  from 
each  opinion  all  the  legal  principles  therein  asserted  as  neces- 
sary grounds  of  the  decision;  and  to  formulate  those  principles 
into  syllabi  as  clear  and  terse  as  possible;  2.  To  state  those 
facts  which,  though  not  disclosed  by  the  court,  are  necessary 
to  enable  the  reader  the  better  to  comprehend  the  opinion,  and 
to  determine  whether  any  portion  thereof  was  unnecessary  to 
the  decision  of  the  cause;  3.  To  embody  in  cross-references,  at 
the  close  of  the  opinion,  citations  of  parallel  and  analogous 
cases  reported  in  the  present  series  or  in  the  American  Re- 
ports or  the  American  Decisions;  4.  To  write  full  and  accurate 
notes  to  such  cases  as  involve  topics  which,  either  from  their 
novelty  or  importance,  are  thought  worthy  of  especial  consid- 
eration. 

The  matter  to  be  reported  will  consist  of  opinions  of  the 
courts  of  last  resort  in  the  several  states,  selected  because  of 
their  general  value  to  the  legal  profession  in  every  part  of  the 
United  States.     Decisions  which  involve  local  or  statutory 

8 


6  Announcement. 

questioDS  will  not  be  reported,  except  when  those  qnestiona 
are  blended  with  others  too  important  to  be  excluded.  In 
that  event,  no  point  of  the  opinion  will  be  omitted.  It  is 
true,  this  may  occasionally  result  in  the  publication  of  matter 
of  local  value  only;  but  this  evil  will  be  more  than  compen- 
sated by  the  obvious  advantages  of  a  complete  report.  Per- 
sons seeing  a  case  cited  as  reported  in  the  original  as  well  as 
in  this  series  will  naturally  and  rightfully  expect  that  either 
citation  may  be  safely  cited  in  support  of  the  same  proposi- 
tions. Furthermore,  an  opinion  from  which  something  is 
known  to  be  omitted  is  always  viewed  with  a  suspicion  which 
seriously  impairs  its  force  as  an  authority.  Doubts  will  surely 
arise  whether  the  part  omitted  may  not  limit  or  enlarge  that 
which  is  inserted,  or  may  not  show  that  the  portion  published 
is  a  mere  extrajudicial  opinion,  not  entitled  to  the  rank  and 
credit  of  a  matter  necessarily  decided. 

While,  as  has  been  indicated,  decisions  involving  statutory 
questions  will  rarely  be  reported,  yet  when  reported,  if  the 
statute  is  not  sufficiently  disclosed  in  the  opinion  of  the  court, 
the  clauses  under  consideration  will  be  set  forth,  either  sub- 
stantially or  in  full,  in  the  statement  of  facts.  By  this  means, 
the  decision  can  be  clearly  understood  by  persons  not  having 
access  to  the  original  statute,  and  can  be  properly  applied  and 
conceded  the  force  of  authority  in  every  state  having  similar 

statutes. 

A.  0.  F. 

San  Fbakoisco,  July  27,  1888. 


AMERICAN  STATE  REPORTS. 

VOL.  I. 


SCHEDULE 


Bhowing  the  original  volumes 
cases  herein  selected  and  re- 
and  the  pages  of  this  volume 


of  reports  in  which  the 
reported  may  be  found, 
devoted  to  each  state. 


California  Reports.   .    . 

^        ^ 

.    .Vol.72. 

FAGS. 

17-  91 

Connecticut  Reports. 

•        • 

.    .Vol.54. 

92-149 

Houston's  Delaware  Reports. 

.    .Vol.5. 

150-172 

Florida  Reports.   .    .    . 

.    .Vol.22. 

173-230 

Kansas  Reports.     .    .    , 

.    .Vol.37. 

231-280 

Maine  Reports 

.    .Vol.79. 

281-358 

Maryi.and  Reports.    .    , 

.    .Vol.67. 

359-i21 

Massachusetts  Reports. 

.  Vol.  145. 

422-486 

Michigan  Reports.     .    . 

.  Vols.  60,  61. 

487-623 

Minnesota  Reports.   .    . 

.  Vol.  36. 

624-700 

Missouri  Reports.      .    , 

.  Vol.  92. 

701-784 

New  York  Reports.  .    • 

.  Vol.  107. 

785-904 

Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/americanstaterep01freeiala 


AMERICAN  STATE  REPORTS. 

VOL.    I. 


CASES  REPORTED. 


Naj».  Subjxct.  Bepobt.  '  Paqi. 

Adams  v.  BoalL .Infancy 67  Md.  53 379 

Adams  v.  Re  Qua. Judgments 22  Fla.  250. 191 

Allen  V.  Maine  Central  R.  R.  Co. .  Common  carrien. . .  79  Me.  327 310 

Allison  V.  Thomas Deeds— proceaa..  . .  72  Cal.  562 89 

Anderson  v.  Goflf Process 72  Cal.  65 34 

Anderson  v.  Peterson PubUclands 36  Minn.  547 698 

Ayer  v.  Western  Union  TeL  Co. . .  Telegraphs. 79  Me,  493 353 

Baltimore  etc.  R.  R.  Co.  t.  Boyd. .  Trespass 67  Md.  32 362 

Barker  ads.  People Jury  and  jurors. . .  60  Mich.  277 501 

Barry  y.Terkildsen •  1  ^^'^"^J^ce.  }  72  CaL  254. 55 

Bassett  v.  Conn.  River  R.  R.  Co.  Railroads. 145  Mass.  129 443 

Bates  V.  Wiggin. Mortgages 37  Kan.  44 234 

Bath  V.  Metcalf False  imprisonment.liS  Mass.  274 455 

Bennett  v.  Kroth Costs— witnesses.. . .  37  Kan.  235 248 

Berlack  v.  Halle Mortgages 22  Fla.  236 185 

Bliss  V.  Inhab.  of  South  Hadley. .  .Negligence 145  Mass.  91 441 

Bolinger  v.  St.  Paul  eta  R.  R.  Co.Railroads 36  Minn.  418 680 

Briggs  V.  Lewistou  etc.  R.  R.  Co.  .Munic  corporat'ns.  79  Me.  363 316 

Brooks  V.  Brooks Mar'ge  and  div'rce.  145  Mass.  574 485 

Banker  v.  Barron Mortgages— paym't.  79  Me.  62 282 

Bu.k.v.J.hn»a. \  ""nZtiT:  \  ^^  ^- ^^^ »»» 

Burrows  v.  Mickler Pleading  and  prac.  22  Fla.  572 217 

Bushby  v.  New  York  etc  R.  R.  Co.Mofter  and  servant.  107  N.  Y.  374 844 

Butler  V.  Chambers Constitutional  law. .  36  Minn.  69 638 

CaUananr.  Oilman Higlnoays 107  N.  Y.  360 831 

Carpenter  v.  Rodgera Contracts 61  Mich.  384 695 

Carstens  ▼.  Hanselman. S  Husband  and  wife  )   d  Mich.  426 606 

(      — phystaans.      ) 

Casco  National  Bank  ▼.  Shaw Neg.  instruments. , .  79  Me.  376 319 

Clapp  ▼.  Minneapolis  etc.  R.  R.  Co.  Master  and  servant.  36  Minn.  6 629 

9 


10  .  Cases  Reported. 

NAiu.                                          Subject.  Expokt.  Pags. 

Clark  V.  Mosher Interpleader. 107  N.  Y.  118. . . . .  798 

"Ipra^rufcom^?""*^*  { iKaB«,^y™«a,<V  67  Md.  461 409 

C.bumv.G««d.U —  jiaitt&;'«.|  '2CJ.498 75 

Colman  v.  Goodnow Afechanica'  liens  ...  36  Minn.  9 632 

Combav.  Combs Willa 67  Md.  11 359 

Connor  v.  Stanley Contracts— insanity.  72  Cal.  556 84 

Cooch's  Executor  v.  Cooch's  Ad-  j  Estates  qfdeced'ts  }     -  g-,^*  kaq  j gi 

ministrator.  (  — mils.  \     o  "O'^''' *>*"••  •• 

Cover  V.  Stem Debtor  and  creditor.  67  Md.  449 406 

Cowen  V.  Sunderland Landlord  and  ten't.H5  Mass.  363 469 

Craver  v.  Christian Master  and  servant.  36  Minn.  413  ....  675 

Crawford  v.  Spencer |  Gaming^mHracU  )   ^  ^^  ^^gg ^^ 

Credit    Company,    Limited,    v.  j     Corporations —    )   g^  Conn.  357  123 

Howe  Machine  Company.        \  Neg.  instruments.  )   °*  *^"***  ^' 

Cunningham  v.  Jones Attorney  and  clienL  37  Kan.  477 257 

Dalay  v.  Savage Highways 145  Mass.  38 429 

Davis  V.  Kobe Factors 36  Minn.  214 663 

Deringer's  Administrator v.Der.«     Corjxrration*^    )  5  Hou8t.416....  160 
mger  s  Administrator.                \  exrs  and  admrs.  ) 

Detroit  Base-ball  Club  v.  Deppert./n/MrerfJon« 61  Mich.  63 666 

Defoe  V.  Harshaw Munis,  corporai'na.  60  Mich.  200  ....  498 

Donaldson  V.  Wilson. S  Landlordandten-  )   go  Mich.  86 487 

(   ant — negligence.    ) 

Dore..  Dougherty KS^tS^^  }  '^  C^  ==*= " 

D.dIeyT.Ha»t j  ^'^"'i^^^u^fio^  {  «' Md.  44 3M 

^ T^no^u""'''"^  Company  ^^^  huitruMM . .  67  Md.  383 396 

"^trJ^C^^fsSolf  "'i"^'* "Md.  493 412 

Evans  V.  Robberson Exeeut^ms 92  Mo.  192 701 

Fairbanks  v.  Snow Duress 145  Mass.  153 446 

Firemen's  Insurance    Company  J  Partnership^—       \  r-j  Md  40^  1Q8 

of  Baltimore  v.  Floss.  (  insurance,  f     '  

Fisk  V.  Central  Pacific  R.  R.  Co. . .  Master  and  servant.  72  Cal.  38 22 

Freehling  v.  Bresnahan Exemptions 61  Mich.  540. ....  617 

Freeman  v.  Fosa Statute  of  frauds.  .145  Mass.  361 467 

Gadway  ads.  People Statutes 61  Mich.  285 578 

Gayv.  GillUan Wills. 92  Mo.  250 712 

Gilley  v.  Gilley Parentand  child. . .  79  Me.  292 307 

Giroux  V.  Stedman Sales 145  Mass.  439 472 

Godfrey  v.  White Partition 60  Mich.  443 637 

Granite  National  Bank  v.  Fitch, .  .Neg.  instruments. . .  145  Mass.  567 484 

Griebv.  Cole Sales 60  Mich.  397 533 

Grissell  v.  Housatonic  R.  R.  Co. .  .Railroads 54  Conn.  447 138 

Gunnv.  Peakes Judaments. 36  Minn.  177. . . . .  661 


Cases  Reported.  11 

Naxb.  Subjxct.  Bxpobt.  Paqx. 

Haley.  Spaulding Belease. 145  Mass.  482.....  475 

Hall  V.  Kimmer Pensions 61  Mich.  269. 575 

Harshaw  ada.  People MuTiic  corporations,  60  Mich.  200. ....  498 

Harris  v.  Bank  of  Jacksonville. . . .  Alter' nqfinstrum'ts.  22  Fla.  501 201 

Hayea  v.  Nourse Pleading  andpiac.107  N.  Y.  577 891 

Hazeltiue  t.  Belfast  etc  R.  R.  Co.Corporations 79  Me.  411 330 

Hodge  V.  Sloan Covenants 107  N.  Y.  244. 816 

Holman  v.  Continental  L.  Ins.  Co.Insurance 54  Conn.  195 97 

House  V.  House Attorney  and  client.  61  Mich.  69 570 

Hadsonv.  Coe Co-tenemcy 79  Me.  83 288 

Jackson  and  Wife  y.  Holbrook. . .  .Judgments 36  Minn.  494  ....  6S3 

Johnson  v.  Williams. Deeds 37  Kan.  179 243 

Johnston  v.  Allen. Neg.  instruments. . .  22  Fla.  224 180 

Kaes  y.  Gross Homeste'ds— dower.  92  Mo.  647 767 

Kendrick  y.  Towle Negligence 60  Mich.  363 526 

King  V.  Warfield Contracts ; .  67  Md.  246 384 

Kiplinger  y.  Green Landlord  and  ten't.  61  Mich.  340 5S4 

Knapp  V.  Bailey Deeds — notice. 79  Me.  195 295 

Kraker  ads.  People Criminal  law 72  CaL  452 65 

'^riL^S'So^/""  }^»»™« '^CaL  M « 

Kurtz  y.  State Extradition 22  Fla.  36 173 

Lancaster  y.  Connecticut  Mutual  J  Master  and  ser-  )   gn  -xr^  ^gn  kqq 

Life  Insurance  Company.  }  vant — negligence.)  '         

Laubheim  v.  De  K.  N.  S.  Co. Shipping 107  N.  Y.  228 815 

Lewis  y.  Wetherell Homestead* 36  Minn.  386  . . . .  674 

Lindsley  y.  Chicago  etc.  R.  R.  Co.C7om7non  carriers  . .  36  Minn.  539  ....  692 

Logan  y.  Logan. Fraud,  conveyances.  22  Fla.  661 212 

Lowell  y.  Strahan Landlord  and  <«nV.145  Mass.  1 422 

^^e^i^""'  oS'  ^**^°*^  ^*^  °*  [^««^  a*"* banHng.lOl  N.  Y.  179 803 

Manchester  y.  Braedner Stat,  qf  Imitations. 107  N.  Y.  346 829 

Mathews  y.  Phelps Chtaranty 61  Mich.  327 581 

McCoy  y.  Brennan Exemptions 61  Mich.  362 589 

McFadden  y.  Missouri  eta  R'y  Co.  Common  carrier*. . .  92  Mo.  343 721 

McFarland  y.  Sikes ContracU. 54  Conn.  250 Ill 

McGee  y.  Missouri  Paoifio  R'y  Co .  Common  carriers  . .  92  Mo.  208 706 

McPhee  y.  Litchfield Mechanics'  liens. ...  145  Mass.  565 482 

McPhersony.  Rollins. |  ^'^''^■^«.  }  ^07  N.  Y.  316 826 

'"^f^.D'e^r'l^i'crpS^y'l^"^ 60  Mich.  143.....  491 

Mitchell  y.  Aten Agency— judgm't*..  37  Kan.  33. 231 

Miller  y.  Dunn. Constitutional  law. .  72  CaL  462. 67 

Miller  y.  Shay Evidenc* ^.145  Mass.  162 449 

"wh'^'L^pJJ""^   °"(J^«,I4««. I«M-..!81 458 

New  York  Rubber  Co.  y.  Rothery.£:«toppel. 107  N.  Y.  810 822 


12  Cases  Reported. 

Namk.  Subject.  Ectobt.  Pagb. 

Oak  V.  Dustin Duress 79  Me.  23 281 

Oakland  Paving  Co.  v.  Tompkins.. Corw^u^ioTtaZ  law. .  72  CaL  5. 17 

O'Brien  v.  Vaill Innkeepers 22  Fla.  627 219 

Palmer  v.  Howard Sales— mortgages . .  72  Cal.  293 60 

Parletb  v.  Qnggenheimer Trade-mark 67  Md.  542 416 

Parker  v.  State Rape 67  Md.  329 387 

Pearl  V.  Oarlock Replevin 61  Mich.  419 603 

Peckv.  McLean. |  ^-^"^^^J^;;;^  [  36  Minn.  228 665 

Peninsular  R.  R.  Co.  y.  Gary Railroads 22  Fla.  356 194 

People  V.  Barker Jury  and  jurors. . .  60  Mich.  277 501 

People  V.  Gadway Statutes 61  Mich.  285 578 

People  ex  rel.  Dafoe  ▼.  Harshaw.  .Munic.  corporat'ns .  60  Mich.  200 498 

People  V.  Kraker Criminallaw 72  Cal.  459 65 

People V.  Sharp. |  *^'"'"°i£L».  }l07N.  Y.427 851 

People  v.Squir, j  ^i^^.  [l07N.  Y.  693.....  893 

Phelps  V.  Bates Wills 54  Conn.  11 92 

Philadelphiaetc.  R.  R.  Co.  v.  Vrook.  Railroads 67  Md.  339 390 

Pierce  v.  Equitable  Life  Assur-  K^^^^ 145  Mass.  56 433 

ance  oociety.  ) 

^WSoc?e^5!^''  ^^'^^^  ^^[j^««an« 72  Cal.  180 45 

Piperv.  Hoard Stat.  o/limitaiion8..10TlS.  Y.  67 785 

Piper  V.  Hoard Marr'geanddiv'rce.  107  N.  Y.  73 789 

Pratt  V.  Duncan. Mechanics'  liens 36  Minn.  545 697 

Pye  V.  City  of  Mankato Munic.  corporat'ns.  36  Minn.  373 671 

Raub  V.  Smith Statute  of  frauds. .  61  Mich.  543 619 

Renner  v.  Canfield Damages 36  Minn.  90. 654 

Riggs  V.  Sterling Homesteads 60  Mich.  643 554 

Ross  V.  Leggett Arrets — damages. .  61  Mich.  445 60S 

Royal  V.  Chandler Emdence 79  Me.  265 305 

Scarflf  V.  Metcalf Shipping. 107  N.  Y.  211 807 

Seele  v.  Inhabitants  of  Deering. .  .Munic.  coTpora£ns.  79  Me.  343 314 

Sharp  ads.  People |  ^"'"'""IS^e..  [l^^N.  Y.  427 851 

Sherwood  v.  Whiting Deeds 54  Conn.  330 116 

'  Wn:/£n,?™?ttouC^:  '•  •-  fcoa»™«o« «Mieh.226.....  571 

Simpson  v.  Story Shipping 145  Mass.  497 480 

Smith  V.  Peninsular  Car  Works. . .  Master  and  servant.  60  Mich.  501 542 

Smith  V.  Wabash,  St.  Louis,  and  j    Master  and  ser-  }   go  Mo  359  729 

Pacific  Railway  Company.        {  vant — railroads.)  

Smith  V.  Wilson Innkeepers 36  Minn.  334 669 

Spring  V.  Hager Innkeepers 145  Mass.  186 451 

Squire  ads.  People. \  ^.l^.-J^^^;,  [l07N.  Y.593 893 

State  V.  Thurston Statutes 92  Mo.  325 720 

Stewart  v.  Smith Mortgages 36  Minn.  82 651 


Cases  Reported.  13 

Kahk.  Subject.  Rkpobt.  Pagx. 

Bt.  Louis  etc.  R.  R.  Ca  r.  Irwin.  .Master  and  servant.  37  Kan.  701 266 

Stone  V.  French Deeds 37  Kan.  145 237 

Sullivan  v.  Royer Nuisance. 72  Cal.  248 51 

Thonuis  V.  Joslin Judgments 36  Minn.  1 624 

Thurston  ads.  State Statutes 92  Mo.  325 720 

Tobey  v.  Hakes Mandamus 54  Conn.  274. ....   114 

Tomlmson  V.  Bury Wills 145  Mass.  346 464 

Tufts  V.  Sylvester Sales 79  Me.  213 303 

Tyler  v.  Carlisle Gaming 79  Me.  210. 301 

Union  Savings  Ass'n  v.  Seligman.  .Corporations 92  Mo.  635 776 

Venable V.Dutch 1'"'"'^;;;^;;^  }  37  Kan.  515 260 

Wait  V.  Baldwin Deeds 60  Mich.  622 651 

'^^r^.'s^'s  bIxs'  '^  }^"'»^- =«^'»' =^ 

Wheaton  v.  Trimble Husband  and  iri/%.145  Mass.  345  ....  463 

White  V.  Kuntz Accord  and  sattifn-lOl  N.  Y.  518 886 

Whitney  v.  Salter Estates/or  life 36  Minn.  103 656 

Wichita  etc.  R.  R.  Co.  v.  Davis. .  .Railroads 37  Kan.  743 275 

Wilson  V.  Jamison Taxation 36  Minn.  59 635 

Wilson  V.    Minnesota  Farmers' )  r  oa-Kx-        no  eita 

Mutual  Fire  Insurance  Ass'n.    f  ^»*««"»« 36  Mmn.  112  ... .  659 

Wilson  V.  Wilson Trusts  and  trustees.  \45  M.ass.  4XXi 477 

Winn  V.  Sanford Suretyship 145  Mass.  302 461 

Wood  V.  CaUaghan j '^^"ST^  [  61  Mich.  402 697 

Woodman  V.  Pitmaa Ice 79  Me.  456 842 

'^SS'com^'^"'^  ^"  \Mastera^.en>cmL  79  Me.  397 821 


AMERICAN  STATE  REPORTS. 

VOL.  I 


CASES 

rN   THE 

SUPREME    COURT 

OF 

CALIFORNIA 


[Ik  Bank.] 

Oakland  Paving  Company  v.   Tompkins. 

[72  Califobnia,  6.] 
To  Emtsr  PmuAitiLT  Means  to  Go  in  or  to  Come  in.     It  also  some^ 
timea  means  to  register  the  essential  fact  concerning  the  thing  said  to  b« 
entered. 

COHSTITUTIONAL  PeOVISION    ReQUIRINQ    AmENSMSNTS  TO  CJONSTITTJTION  TO 

BE  EIntered  on  the  journals  of  the  senate  and  assembly  is  satisfied  by 
the  entry  on  such  journals  of  an  identifying  reference.  The  amend- 
ment need  not  be  copied  in  full  upon  such  journal. 

Mandate  to  require  the  execution  of  a  contract  by  a  city 
marshal  for  street  work.  Whether  the  mandate  should  issue 
or  not  depended  on  the  validity  of  a  constitutional  amend- 
ment, which  was  assailed  on  the  ground  that  such  amendment 
had  not  been  entered  on  the  journals  of  the  senate  and  as- 
sembly. The  only  supposed  defect  with  respect  to  such  entry 
was  the  failure  to  copy  the  amendment  in  full  on  the  journals. 

C.  T.  Johns,  for  the  appellant. 

/.  H.  Boalt,  Henry  Vroomany  and  C.  T.  H.  Palmer,  for  the 
respondent. 

By  Court,  Temple,  J.  This  case  arises  from  a  street  assess- 
ment in  Oakland.  The  only  question  submitted  is,  whether  the 
constitutional  amendment  No.  1,  ratified  by  the  electors  at  the 
general  election  in  1884,  being  an  amendment  to  section  19, 
article  11,  was  proposed  by  the  legislature  as  required  by  sec- 
tion 1,  article  18,  of  the  constitution.     That  section  provides 

AM.  St.  Kbp.,  Vol.  L  —  2  17 


18  Oakland  Payixq  Co.  v.  Tompkins.  [Cal. 

that  amendments  may  "be  proposed  in  the  senate  and  as- 
sembly, and  if  two  thirds  of  all  the  members  elected  to  each 
of  the  two  houses  shall  vote  in  favor  thereof,  such  proposed 
amendment  or  amendments  shall  be  entered  in  the  journals, 
with  the  yeas  and  nays  taken  thereon,"  etc. 

The  objection  is,  that  the  proposed  amendment  was  not  en- 
tered in  the  journal  of  either  house,  as  required  by  the  consti- 
tution. 

It  was  not  copied  into  the  journal,  but  there  was  entered  an 
identifying  reference,  such  as  is  always  entered  in  regard  to 
legislative  bills;  that  is,  it  was  proposed  as  a  senate  bill,  and 
was  referred  to  by  title  and  number.  The  yeas  and  nays  were 
entered  as  directed.  It  is  agreed  that  the  amendment  thus 
proposed  was  submitted  to  the  people,  and  received  a  very 
large  majority  of  the  votes  cast. 

This  question  is  not  a  new  one  in  this  court.  In  People  v. 
Strother,  67  Cal.  624,  it  was  the  only  issue  of  any  importance, 
and  it  was  squarely  decided  that  the  amendment  had  been 
constitutionally  adopted.  This  was  in  bank,  and  there  was 
no  apparent  dissent.  This  decision  was  in  October,  1885,  and 
in  the  following  May,  in  the  case  of  the  Oakland  Paving  Co.  v. 
Hilton,  69  Cal.  479,  an  opinion  was  rendered  by  Justice  Thorn- 
ton, which  was  concurred  in  by  Mr.  Justice  McKee,  holding 
to  the  contrary.  The  other  members  of  the  court  who  par- 
ticipated in  that  decision  based  their  concurrence  on  other 
grounds. 

It  is  contended  that  in  this  condition  of  the  decisions  the 
question  ought  to  be  considered  an  open  one.  We  do  not  ac- 
cede to  this  proposition.  In  the  case  of  People  v.  Strother, 
supra,  the  point  was  squarely  presented,  was  the  only  one  in- 
volved, and  was  plainly  and  unequivocally  decided.  We  see  no 
reason  why  it  is  not  entitled  to  the  usual  authority  of  a  prece- 
dent; nor  do  we  concede  that  in  so  deciding  there  was  error. 
All  admit  that  the  constitutional  requirement  must  be  strictly 
performed.  But  it  does  not  follow  from  this  that  the  language 
of  the  instrument  must  be  understood  literally.  The  same 
rules  of  construction  must  be  applied  to  ascertain  what  its 
requirements  are,  as  though  it  were  not  mandatory  and  pro- 
hibitory. And  we  think  when  an  act  commanded  or  author- 
ized may  be  done  in  different  ways,  either  of  which  would  be 
a  strict  compliance  with  the  terms  of  the  instrument  under- 
stood in  some  common  and  popular  sense,  either  mode  may 
be  pursued,  unless  some  reason  is  discoverable  for  holding 


Feb.  1887. J    Oakland  Paving  Co.  v.  Tompkins.  19 

that  one  of  such  modes  only  will  answer.  If,  for  instance, 
the  direction  to  enter  the  amendment  in  the  journal  is  com- 
plied with,  in  some  usual  and  popular  sense  of  the  language, 
either  by  copying  the  amendment  into  the  journal,  or  by 
placing  upon  the  journal  an  identifying  reference  only,  either 
will  do,  unless  the  context  shows  a  different  intention. 

Now  the  word  "  enter  "  primarily  means  to  go  in  or  to  come 
in,  but  has  many  derivative  meanings,  and  is  often  employed 
in  elliptical  expressions,  and  is  quite  apt  to  be  so  used  that  the 
literal  or  most  obvious  meaning  cannot  be  attributed  to  it.  We 
read,  for  instance,  in  the  laws  of  Congress  that  citizens  may 
enter  at  the  land-oflSce  a  tract  of  land,  and  the  expression  is 
repeated  in  different  forms  many  times.  We  are  often  told 
that  a  certain  horse  has  been  entered  for  a  race,  or  an  animal 
has  been  entered  at  a  fair.  What  is  really  done  in  each  in- 
stance is  to  make  a  record  of  certain  important  facts  for  pres- 
ervation or  notice.  And  such  is  certainly  a  very  ordinary 
meaning  of  the  word  "enter"  when  used  in  this  derivative 
sense;  that  is,  to  register  the  essential  facts  concerning  the 
thing  said  to  be  entered.  And  we  think  it  may  be  fully  ad- 
mitted that  the  most  natural  and  obvious  meaning  of  the  word 
when  employed  in  this  derivative  sense  is  to  copy,  without 
greatly  affecting  the  argument. 

We  find  near  the  title-page  of  nearly  every  book  printed 
that  it  has  been  entered  in  the  ofl&ce  of  the  librarian  of  Con- 
gress. What  is  really  left  with  the  librarian  is  the  title-page 
of  the  proposed  book,  and  this  constitutes  the  entry,  although 
after  it  is  printed  the  author  is  now  required  to  present  a  copy 
of  the  book  for  the  congressional  library.  We  sometimes  read 
that  a  certain  play  of  Shakespeare  was  entered  at  Stationers' 
Hall.  We  find  that  the  entry  really  made  was  a  brief  identi- 
fying reference,  preliminary  to  obtaining  license  to  print. 
Such  instances  of  the  use  of  the  word,  and  of  the  phrase  in 
which  it  occurs,  might  be  multiplied  indefinitely,  but  these 
are  enough  to  show  that  this  usage  is  quite  common.  Now,  if 
we  substitute  in  all  these  and  like  cases  the  word  "  copy  "  or 
the  phrase  "  enter  at  large  "  for  the  word  '*  enter,"  we  are 
conscious  at  once  that  a  great  change  has  been  made.  In- 
deed, the  mere  fact  that  the  qualifying  words  "  at  large,"  "  at 
length,"  "  in  full,"  do  so  often  accompany  the  word  "  enter," 
is  proof  that  all  feel  that  it  is  not  a  synonym  of  the  word 
"  copy." 

The  language,  however,  had  been  construed  under  the  old 


20  Oakland  Paving  Co.  v.  Tompkins.  [Cal. 

constitution,  which  contained  the  same  words,  and  under 
which  amendments  had  been  adopted  in  the  mode  pursued 
in  this  case. 

The  practice  of  both  houses  of  the  legislature  had  given  this 
construction  to  similar  language.  The  joint  rules  have  always 
required,  as  also  do  the  rules  of  the  House  of  Representatives 
of  Congress,  that  at  a  certain  stage  in  the  passage  of  a  bill  it 
shall  be  entered  on  the  records  of  the  house.  They  have 
always  been  so  entered  by  identifying  reference.  The  conven- 
tion itself  adopted  Cushing's  Manual,  which  employs  similar 
language  which  is  so  used  that  it  must  be  similarly  under- 
stood. 

Many  statutes  in  force  at  the  time  the  convention  was  in 
session  employ  the  language  in  the  same  sense:  Pol.  Code, 
eecs.  254,  656,  4031;  Civ.  Code,  sec.  324. 

The  convention  adopted  the  language  under  consideration 
with  knowledge  of  the  practical  construction  which  had  been 
given  to  the  same  words  under  the  old  constitution,  and  in 
view  of  the  established  usage  of  the  legislature  as  to  entries  in 
the  journals.  It  knew  that  the  practice  had  always  been  to 
consider  similar  matters  entered  on  the  journals  when  there 
was  made  a  simple  identifying  reference.  It  knew  also  of  the 
common  usage  to  which  we  have  referred;  and  it  is  fair  to 
presume  that  it  intended  the  same  meaning.  Otherwise  it 
would  have  used  some  language  which  would  indicate  that 
a  diflferent  entry  was  required  from  that  which  was  habitually 
made  in  the  journals.  In  addition  to  this,  we  have  the  au- 
thority of  both  houses,  which  have  declared  the  proposal  duly 
made,  and  the  amendment  duly  adopted;  of  the  executive 
who  submitted  it  to  the  people;  and  whatever  force  there  be  in 
the  fact  that  the  people  acted  upon  and  ratified  it. 

This  is  sufficient  to  uphold  the  amendment,  unless  we  can 
see  from  the  context  that  something  else  was  meant.  We 
perceive  no  such  intent.  The  evident  purpose  of  the  entire 
provision  doubtless  was  to  preserve  a  record  of  the  vote.  As 
a  majority  controls  the  journals,  it  may  have  been  appre- 
hended that  it  might  be  made  to  appear  that  the  proposal  was 
duly  passed,  although  lacking  the  requisite  majority,  and  so 
it  was  required  that  the  yeas  and  nays  be  entered.  But  how- 
ever this  may  be,  the  principal  thing  is  the  record  of  the  yeas 
and  nays,  and  this  purpose  is  accomplished  as  perfectly  by 
the  entry  made  as  it  would  be  by  any  other. 

As  to  preserving  the  identity  of  the  amendment  proposed, 


Feb.  1877.]    Oakland  Paving  Co.  v.  Tompkins.  21 

there  is  no  greater  diflBculty  in  this  matter  than  with  refer- 
ence to  bills.  That  is  left  to  be  provided  for  by  the  legisla- 
ture. 

The  parties  agree  that  in  case  the  amendraent  was  properly 
adopted  the  judgment  should  be  aflBrraed.  It  is  stipulated 
that  in  the  proceedings  there  was  full  compliance,  both  with 
the  street  laws  prior  to  1880  and  with  the  law  of  1885.  It  is 
therefore  not  necessary  to  decide  which  law  is  in  force.  That 
question  is  really  stipulated  out  of  the  case. 

Judgment  aflBrmed. 

Paterson,  McFarland,  McKinstby,  and  Sharpstein,  JJ., 
and  Morrison,  C.  J.,  concurred. 

Thornton,  J.,  dissented. 

EnTERINO  CONSXrnJTIONAL  ASIENDMENTS  IN  Joi7RNAL3  OF  LeOISLATURK.  — 

In  the  constitutions  of  many  of  the  American  states  are  provisions  authoriz- 
ing their  amendment,  and  providing,  in  substance,  that  amendments  may  be 
proposed  in  the  senate  and  assembly  of  the  state,  and  if  sufficient  of  the 
members  shall  vote  in  favor  thereof,  then  that  the  amendment  or  amend- 
ments  shall  be  entered  in  the  journals,  with  the  yeas  and  the  nays  taken 
thereon.  In  at  least  three  states  the  question  has  arisen  whether  this  com- 
mand  to  enter  the  amendments  in  the  journal  signifies  that  they  shall  bo 
entered  in  full,  or  may  be  satisfied  by  the  entry  upon  the  journals  of  soma 
reference  to  the  amendments,  indicating  the  action  taken  thereon. 

The  question  first  arose  in  California,  in  the  case  of  People  v.  Strotker,  67 
Cal.  624;  and  while  it  was  undoubtedly  there  decided,  there  is  nothing  in  th« 
case  as  reported  to  make  known  the  reasoning  upon  which  the  decision  was 
based,  nor,  indeed,  to  give  any  hint  of  the  real  subject  there  under  considera- 
tion. 

The  second  case  was  that  of  Oakland  Paving  Co.  v.  Hilton,  69  Cal.  479.  In 
that  case,  the  question  was  considered  at  great  length  in  the  opinion  of  Mr. 
Justice  Thornton,  in  which  Mr.  Justice  McKee  concurred.  But  as  the  ques- 
tion was  not  essential  to  the  disposition  of  the  case,  and  as  none  of  the  other 
justices  expressed  any  opinion  thereon,  that  case  cannot  be  regarded  as  an 
autliority  upon  the  subject,  one  way  or  the  other.  It  is  sufficient  for  our 
present  purpose  to  state  that  the  opinions  of  justices  Thornton  and  McKee 
were  the  reverse  of  those  announced  by  the  court  in  the  case  first  cited,  and 
also  in  the  principal  case. 

So  far  as  we  are  aware,  the  question  first  arose  in  what  was  known  as  the 
Prohibitory  Amendment  Cases,  24  Kan.  700.  The  court  there  took  a  position 
which  went  very  far  toward  the  judicial  indorsement  of  the  doctrine  that 
there  is  a  higher  law  than  the  constitution.  "The  central  idea  of  the  Kan- 
sas law,"  said  the  court,  "as  of  Kansas  history,  is,  that  substance  of  right  is 
grander  and  more  potent  than  methods  and  forms.  The  two  important, 
vital  elements  in  any  constitutional  amendment  are  the  assent  of  two  thirds 
of  the  legislature  and  a  majority  of  the  popular  vote.  Beyond  these,  their 
provisions  are  merely  machinery  and  forms."  As  may  be  inferred  from  this 
judicial  exordium,  the  court  considered  itself  at  liberty  to  treat  this  provis- 
ion of  the  constitution  as  being  directory  merely.     It  reached  this  conclusion 


22  FisK  V.  Central  Pacific  R.  R.  Co.  [Cal. 

OQ  the  ground  that  the  records  in  the  journals  were  not  made  by  the  people, 
nor  even  by  the  legislatures,  but  by  the  clerks  of  the  latter;  that  the  concur- 
rence of  these  clerks  in  the  presentation  of  a  constitutional  amendment  was 
not  an  essential  matter;  and  that  any  want  of  the  performnnce  of  their  duties 
would  not  be  permitted  to  invalidate  an  amendment  which  had  confessedly 
been  proposed  by  the  legislature,  and  submitted  to  and  ratified  by  the  people. 
The  other  case  in  which  the  question  was  considered  is  that  of  Koehler  v. 
Hill,  60  Iowa,  543.  In  that  case  it  did  not  appear  that  there  had  been  an 
attempt  to  ignore  the  constitutional  provision,  nor  even  to  accord  it  the  con- 
struction given  in  the  principal  case.  The  proposed  amendment  had  been 
entered  upon  the  journals,  but  there  was  a  substantial  difference  in  its  phrase- 
ology as  found  upon  the  journals  and  that  found  in  the  amendment  as  it  was 
submitted  to  and  adopted  by  the  people  of  the  state.  The  court,  however, 
considered  the  general  question,  and  reached  a  conclusion  diametrically  op- 
posed to  that  of  the  supreme  courts  of  California  and  of  Kansas.  It  argued 
that  while  the  words  "  to  enter  "  may  not  necessarily  mean  an  entry  in  full, 
yet  that  such  is  their  manifest  meaning,  as  found  in  the  constitution  of  the 
state;  that  the  object  of  the  constitutional  provision  was  to  provide  such 
entries  upon  the  journals  of  the  legislature  as  should  leave  no  reasonable 
doubt  of  the  terms  of  the  proposed  amendment,  and  of  the  action  of  the 
legislature  thereon;  and  therefore,  that  an  entry  which  failed  to  accomplish 
these  objects  was  substantially  defective;  and  a  constitutional  amendment, 
submitted  and  voted  for  in  its  absence,  could  not  be  conceded  to  have  become 
a  part  of  the  fundamental  law  of  the  state. 


[In  Bank.] 

FiSK  V,  Central  Pacific  Railroad  Company. 

[72  California,  38.] 

Master  is  not  Answerable  to  Servant  for  injuries  inflicted  on  him  by 
negligence  of  another  servant  in  same  common  employment,  and  not 
traceable  to  personal  negligence  of  master. 

Servant  Assumes  Ordinart  Risks  of  employment,  including  risk  of  in- 
jury, from  neglect  of  fellow-servants. 

Order  of  Employee  Directing  Minor  Employee  to  undertake  a  danger- 
ous task  without  proper  advice  as  to  such  danger,  if  it  be  negligence,  is 
the  negligence  of  the  fellow-servant,  for  which  no  recovery  can  be  had 
against  the  master. 

Minor  or  Infant  Employee  cannot  Recover  for  Injuries  caused  by 
negligence  of  a  fellow-servant. 

Where  Negligence  of  Master,  Combined  with  That  of  his  Servant, 
Produces  injury  to  a  fellow-servant,  the  latter  may  recover  damages  of 
the  master. 

Servant  having  Equal  Knowledge  with  Master  of  the  dangerous  char- 
acter of  the  work  upon  which  he  enters  assumes  the  risks  thereof. 

Duty  of  Master  to  Infant  or  Minor  Employee  is  to  warn  and  instruct 
him  regarding  the  dangers  of  the  employment,  and  the  means  of  avoid- 
ing them. 

Minor  Employee  Properly  Instructed  concerning  Dangers  of  his 
employment  thereafter  stands  on  the  same  plane  with  other  servants, 
with  respect  to  the  risks  incident  to  the  employment. 


Feb.  1887.]    Fisk  v.  Ceotral  Pacific  R.  R.  Co.  23 

Boss  07  Tool-room  Whom  Mixok  Employee  is  instructed  to  obey  has  not, 
arising  from  such  instructions,  authority  to  direct  such  minor  to  go  into 
other  shops  of  the  same  master  to  look  for  work;  and  if  such  minor 
employee  does  go  to  such  shop,  and  is  there  placed  in  a  dangerous  em> 
ployment,  without  proper  warning  or  instructions,  and  while  in  such 
employment  is  injured,  he  cannot  recover  therefor  from  the  master. 

Freeman,  Johnson,  and  Bates,  for  the  appellant. 

S.  C.  Denton,  for  the  respondent. 

By  Court,  Searls,  C.  This  is  an  action  to  recover  damages 
for  a  personal  injury  received  by  plaintiff  while  in  the  employ 
of  defendant. 

A  judgment  of  nonsuit  was  entered  in  the  court  below,  from 
which  judgment,  and  from  an  order  denying  a  new  trial,  the 
plaintiff  appeals. 

The  defendant  is  a  corporation  organized  under  the  laws  of 
the  state  of  California. 

At  the  trial  there  was  testimony  tending  to  show  that  in 
September,  1883,  the  plaintiff,  who  was  of  the  age  of  about 
twelve  years,  applied  to  Price  Davis,  assistant  foreman  in  de- 
fendant's boiler-shops  in  Sacramento,  for  work,  and  was  in- 
formed he  would  have  to  see  Charles  Hooper,  the  foreman. 
He  saw  Mr.  Hooper  accordingly,  who  gave  him  work  in  the 
tool-room  under  David  Snape,  who  was  the  boss  of  such  room, 
and  whom  he  was  instructed  to  obey. 

His  principal  work  was  in  cleaning  the  tools,  putting  them 
in  place,  giving  them  to  the  men,  doing  errands,  etc.  He  also 
Beems  to  have  been  engaged  for  nearly  a  month  in  heating 
rivets. 

On  the  Ist  of  May,  1884,  plaintiff  went  to  the  shop,  and 
there  being  no  work  for  him  in  the  tool-room,  he  was  told  by 
the  boss  to  go  into  the  shop  and  see  if  there  was  anything  for 
him  to  do  there.  In  the  shop  he  was  requested  by  Price 
Davis,  Jr.,  a  young  man  aged  nineteen,  and  a  son  of  the  as- 
sistant foreman,  to  go  into  the  fire-box  of  a  boiler  and  wipe  a 
tap,  in  place  of  another  boy  named  Downs,  who  was  engaged 
in  the  work,  and  whom,  young  Davis  said,  he  wanted  to  help 
him  at  something  else. 

The  precise  testimony  on  this  point  is  as  follows:  — 

"  I  went  into  the  shop  and  met  Price  Davis,  Jr.,  and  he 
asked  me  if  I  was  doing  anything;  I  told  him  no,  I  was  not 
doing  anything;  and  he  told  me  that  he  wanted  me  to  go  in 
and  wipe  the  tap  for  him.  He  said  he  wanted  another  boy  to 
help  him.     Before  that  there  was  a  boy  named  Downs  that 


24  FisK  r.  Central  Pacific  R.  R.  Co.  [Cal. 

was  inside  of  the  fire-box,  and  Downs  was  going  to  help  him 
do  some  work.  I  asked  him  if  I  could  not  help  do  the  work, 
and  he  said  no.  He  went  off  and  staid  about  five  minutes, 
and  came  back  and  said  his  father  told  me  to  go  into  the  fire- 
box  He  was  the  son  of  Price  Davis,  the  assistant  fore- 
man," etc. 

The  tap  was  being  used  by  one  John  Soule  to  drill  holes 
through  the  fire-box,  and  to  cut  threads  in  them  to  receive 
screws,  and  was  propelled  by  machinery  on  the  outside,  which 
gave  to  it  a  revolving  motion  at  the  rate  of  one  hundred  revo- 
lutions a  minute. 

The  office  of  plaintiff  was  to  receive  the  tap  when  it  came 
through,  clean  it  from  the  particles  of  iron  which  adhered  to 
its  oiled  surface,  and  pass  it  outside  the  boiler  to  Soule  for 
readjustment. 

There  were  two  methods  for  cleaning  the  tap;  one  was  to 
wait  until  it  came  entirely  through,  and  was  detached  from 
the  machine,  which  was  entirely  safe,  but  slow;  the  other  was 
to  wipe  it  as  it  came  through,  and  while  in  motion,  which  was 
dangerous. 

Plaintiff  testifies  that  Soule  "  told  me  to  wipe  off  the  tap  in 
a  hurry,  and  told  me  to  wipe  it  off  while  it  was  running." 

While  engaged  in  wiping  the  tap  with  a  piece  of  coarse 
doth,  the  instrument  caught  the  cloth,  which  was  around  the 
plaintiff's  hand,  twisted  and  broke  his  arm,  and  injured  him 
severely  and  permanently. 

Plaintiff  had  previously  been  employed  in  a  boiler-shop  at 
Oakland,  and  so  informed  Hooper,  the  foreman  of  the  shop, 
when  he  applied  for  work. 

Soule  was  a  workman  in  the  shop,  and  usually  had  charge 
of  the  tap.  Plaintiff  says:  "  When  I  went  up  to  the  tap,  Soule 
asked  me  what  I  was  going  to  do.  I  told  him  I  had  come  to 
wipe  off  the  tap.  He  said,  *  What  are  you  going  to  wipe  it  off 
with?'  I  told  him  with  a  sack,  and  he  told  me  to  go  inside, 
and  he  said  wipe  it  off  while  it  is  running." 

From  the  nature  of  the  employment  and  the  instrument  de- 
scribed in  the  testimony,  we  have  no  doubt  of  two  proposi- 
tions: — 

1.  It  was  dangerous  business  to  wipe  the  tap  while  in  rapid 
motion,  in  the  manner  pursued  by  plaintiff. 

2.  A  man  of  mature  years,  in  full  possession  of  his  facul- 
ties, and  gifted  with  ordinary  ingenuity,  could  have  performed 
the  task  while  the  instrument  was  in  motion,  without  material 
risk. 


Feb.  1887,]     Fisk  v.  Central  Pacific  R.  R.  Co.  25 

The  rule  is  well  settled  in  England  and  the  United  States 
that  the  maxim  respondeat  superior  does  not  apply  so  as  to 
make  a  master  responsible  for  injuries  inflicted  on  one  servant 
by  the  negligence  of  another  servant,  in  the  same  common 
employment,  unless  such  injuries  are  traceable  to  the  personal 
negligence  of  the  master. 

The  law  implies  a  contract  on  the  part  of  the  servant,  when 
he  enters  into  the  service,  that  he  will  assume  the  ordinary 
risks  which  are  incident  to  the  employment,  among  which  is 
the  risk  of  suffering  hurt  and  injury  from  the  negligence  of 
his  fellow-servants. 

The  boy  (plaintiff)  was  directed  to  go  into  the  fire-box  to 
work  by  Price  Davis,  Jr.,  who  seems  to  have  been  a  hand  in 
the  shop,  who  was  a  son  of  the  assistant  foreman,  and  who 
told  the  plaintiff  that  his  father  (the  assistant  foreman)  so 
directed;  but  there  is  no  evidence  to  show  that  the  assistant 
foreman  gave  any  such  order. 

The  order  of  Soule  directing  the  plaintiff  to  clean  the  tool 
while  in  motion  was  improper,  but  it  was  the  negligence  of  a 
fellow-servant  engaged  in  the  same  general  employment. 

The  rule  which  excuses  a  master  from  liability  where  an 
injury  is  caused  by  the  negligence  of  a  fellow-servant  is  not 
altered  by  the  fact  that  the  party  injured  is  a  child:  King  v. 
Boston  etc.  R.  R.  Corp.,  9  Cush.  112;  Chicago  etc.  R.  R.  Co.  v. 
Harney,  28  Ind.  28;  92  Am.  Dec.  282;  Ohio  etc.  R.  R.  Co. 
v.  Hammersley,  28  Ind.  371;  Gartland  v.  Toledo  etc.  R.  R.  Co.f 
67  111.  498;  Brown  v.  Maxwell,  6  Hill,  592;  41  Am.  Dec.  771. 

We  conclude,  therefore,. that  the  plaintiff  cannot  recover  for 
the  injuries  which  he  received,  either  by  being  placed  by  a 
fellow-servant  in  a  dangerous  place,  or  by  the  negligence  of 
his  fellow-servant  in  directing  him  in  the  manner  in  which  he 
was  to  perform  his  work,  unless  the  negligence  of  his  fellow- 
servants  was  in  some  way  combined  with  the  negligence  of  the 
defendant,  so  as  to  produce  the  result. 

If  the  negligence  of  the  master  combines  with  the  negli- 
gence of  a  fellow-servant,  and  the  two  contribute  to  the  in- 
jury, the  servant  injured  may  recover  damages  of  the  master: 
Crutchfield  v.  Richmond  etc.  R.  R.  Co.,  76  N.  C.  320;  Booth  v. 
Bosi(m  etc.  R.  R.  Co.,  73  N.  Y.  38;  29  Am.  Rep.  97;  Paulmier 
V.  Erie  R.  R.  Co.,  34  N.  J.  L.  151;  Cayzer  v.  Taylor,  10  Gray, 
274;  69  Am.  Dec.  317. 

Was  the  defendant  guilty  of  any  such  negligence  as  ren- 
dered it  liable? 


26  FisK  V.  Central  Pacific  R.  R.  Co.  [Cal. 

There  is  nothing  in  the  testimony  to  show  any  negligence 
in  the  selection  of  Soule  as  an  employee,  or  tending  to  bring 
home  to  the  defendant  knowledge  of  his  carelessness. 

We  must,  therefore,  look  to  the  circumstances  under  which 
the  plaintiff  sought  work  in  the  boiler-shop  for  a  basis  upon 
which  to  determine  whether  or  not  defendant,  or  its  servants 
in  authority,  were  guilty  of  wrong. 

The  first  question,  manifestly,  is  as  to  the  extent  of  the  au- 
thority conferred  upon  Snape,  the  boss  of  the  tool-room;  and 
if  it  shall  be  found  that  he  possessed  the  requisite  power  to 
bind  the  defendant  by  his  direction  to  plaintifif,  then,  second, 
we  may  inquire  into  the  manner  in  which  his  authority  was 
exercised. 

Recurring  to  the  testimony,  we  find,  —  1.  That  Snape  was 
boss  of  the  tool-room,  presumably  connected  with  the  boiler- 
ehop,  and  as  such  had  charge  of  the  tool-room;  2.  That  Hooper 
was  foreman  of  the  boiler-shop,  and  had  authority  to  employ 
men  therein;  3.  That  when  plaintiff  applied  for  work,  Hooper 
employed  him  to  labor  in  the  tool-room,  took  him  to  Snape, 
the  boss,  and  told  him  to  obey  the  latter,  which  he  did;  4.  At 
the  end  of  eight  months,  and  on  the  first  day  of  May,  1884, 
there  being  nothing  for  plaintiff  to  do  in  the  tool-room,  he  was 
directed  by  Snape  to  go  into  the  boiler-shop  and  see  if  he 
could  get  any  work  there;  and  he  went  to  the  shop,  where  he 
obtained  the  employment  in  the  manner  and  with  the  result 
hereinbefore  mentioned. 

"  Where  the  servant  has  equal  knowledge  with  the  master 
of  the  danger  incident  to  the  work,  he  takes  the  risk  upon 
himself  if  he  goes  on  with  it":  Wood  on  Master  and  Servant, 
eec.  349. 

This  doctrine  presupposes  that  the  servant  has  sufficient 
discretion  to  appreciate  the  dangers  incident  to  the  work,  and 
has  no  application  to  the  case  of  young  and  inexperienced 
children. 

In  sach  a  case,  it  is  the  duty  of  the  master,  not  only  to  warn 
the  child,  but  to  instruct  him  as  to  the  dangers  of  the  employ- 
ment and  the  means  of  avoiding  them. 

To  a  mere  child,  like  the  plaintiff  in  this  case,  dangers  which 
would  be  patent  to  the  adult  of  experience  are,  or  may  be, 
latent:  Coombs  v.  New  Bedford  C.  Co.,  102  Mass.  572;  3  Am. 
Rep.  506;  Grizzle  v.  Frost,  3  Fost.  &  F.  622;  Bowling  v.  AlleUy 
74  Mo.  16;  41  Am.  Rep.  298;  Railroad  Co.  v.  Fort,  17  Wall. 


Feb.  1887.]     Fisz  v.  Central  Pacific  R.  R.  Co.  27 

554;  Kline  v.  Central  Pacific  R.  R.  Co.,  87  Cal.  400;  Svllivan 
V.  India  Mfg.  Co.,  113  Mass.  398;  Hilly.  Gust,  55  Ind.  49. 

These  cases  proceed  upon  the  theory  of  the  enhanced  duty 
of  the  employer  in  cases  of  the  employment  of  minors,  with- 
out knowledge  of  the  risks  they  are  to  assume. 

This  duty  performed,  the  minor  properly  instructed,  and  he 
stands  upon  the  same  plane  with  other  servants,  in  reference 
to  the  risks  incident  to  the  employment,  and  those  arising 
from  the  want  of  care  in  his  fellow-servants. 

In  the  cases  cited  supra,  no  question  was  made  as  to  the 
authority  of  the  superintendent  to  bind  his  principal  by  order- 
ing the  thing  done  which  produced  the  injury.  In  all  of 
them,  the  service  to  be  performed  was  within  the  scope  of  the 
authority  conferred. 

Here  the  question  is,  Could  Snape  bind  the  defendant  by 
the  order  he  gave  the  plaintiff  to  seek  work  outside  of  his  own 
peculiar  department? 

He  was  a  boss  in  the  tool-room,  and  as  such,  we  may  fairly 
assume  he  was  authorized  to  control  and  direct  the  manner 
in  which  the  work  of  that  room  was  to  be  performed,  and  all 
other  things  relating  to  the  orderly  and  proper  conduct  of  his 
branch  of  the  business.  But  it  does  not  appear  that  he  was 
authorized  to  employ  hands  for  any  purpose. 

Charles  Hooper  was  the  vice-principal  of  the  defendant  in 
the  boiler-shop,  with  full  control  and  authority,  and  author- 
ized to  employ  and  discharge  help.  He  employed  plaintiff^ 
and  directed  him  to  obey  David  Snape;  but  he  employed  him 
to  work  in  the  tool-room,  and  the  instructions  given  to  plain- 
tiff to  obey  the  boss  of  that  room  must  be  construed  in  view 
of  the  employment. 

We  cannot,  by  any  reasonable  intendment,  hold  that  the 
authority  of  David  Snape  was  enlarged  or  extended  by  this 
direction  of  Hooper.  It  simply  relegated  the  plaintiff  to  the 
control  of  Snape,  within  the  purview  and  subject  to  the  em- 
ployment which  Hooper  had  given  him. 

The  employment  to  work  in  the  tool-shop  was  the  subject- 
matter,  and  the  control  given  to  Snape  and  the  directions  to 
plaintiff  to  obey  him  must  be  construed  with  reference  to  and 
confined  to  such  subject-matter. 

Plaintiff  was  directed  to  obey  Snape,  but  it  was  as  a  laborer 
in  the  tool-room  that  he  was  so  ordered. 

We  know  of  no  rule  or  construction  by  which  the  order 
given  under  such  circumstances,  and  for  such  a  purpose,  caa 


28  FisK  V.  Central  Pacific  R.  R.  Co.  [Cal. 

be  held  to  authorize  Snape  to  employ  the  plaintiff  for  an  en- 
tirely different  purpose  from  that  contemplated  by  Hooper, 
and  thereby  to  bind  the  defendant. 

The  roving  commission  given  to  the  plaintiff  by  Snape,  to 
seek  employment  in  the  boiler-shop,  unless  intended  to  direct 
him  to  the  persons  in  charge  of  such  shop,  involved  an  ele- 
ment of  carelessness,  but  it  was  not  the  negligence  of  the 
defendant  or  of  its  agent  or  vice-principal,  its  aliter  ego  author- 
ized or  held  out  as  being  authorized  to  speak  for  it. 

We  conclude,  therefore,  that  as  Snape  was  not  authorized 
to  send  plaintiff  to  the  boiler-shop  in  quest  of  employment, 
and  that  as  he  was  not  directed  or  employed  by  any  one  so 
authorized,  the  defendant  is  not  responsible  for  the  injuries 
which  he  received  through  the  carelessness,  if  any,  of  defend- 
ant's employees. 

It  follows  that  the  nonsuit  was  properly  granted,  and  the 
judgment  and  order  appealed  from  should  be  affirmed. 

FooTE,  C,  and  Belcher,  C.  C,  concurred. 

The  Court.  For  the  reasons  given  in  the  foregoing  opin- 
ion, the  judgment  and  order  are  affirmed. 

Thornton,  J.,  dissented. 

Rehearing  denied. 

IsTAST  Employees.  —  Notwithstanding  some  general  declarations  to  the 
contrary,  which  may  occasionally  be  found  in  the  reports,  there  is  no  ques- 
tion that  the  law  recognizes  some  distinction  between  the  duty  which  a 
master  owes  his  adult  servant  or  employee,  and  that  which  he  owes  to  an 
employee  who,  from  his  youth  or  inexperience,  or  other  mental  immaturity 
or  infirmity,  is  not  able,  without  instruction,  to  understand  the  perils  to 
which  he  is  exposed  in  the  course  of  his  employment.  This  distinction,  aa 
near  as  we  can  express  it,  is  this:  that  as  to  the  fatter  class  of  servants,  the 
master  must  give  them  full  instructions  with  respect  to  the  dangerous  char- 
acter of  the  machinery  with  or  about  which  they  are  employed,  and  of  the 
means  necessary  to  be  used  to  avoid  those  dangers:  Jones  v.  Florence  M.  Co., 
66  Wis.  268;  57  Ana,  Rep.  269;  ParJchurst  v.  Johnson,  50  Mich.  70;  45  Am. 
Eep.  28;  Bowling  v.  Allen,  74  Mo.  13;  41  Am.  Rep.  298;  Coombs  v.  Bedford 
Cordage  Co.,  102  Mass.  572;  3  Am.  Rep.  506;  Orizde  v.  Frost,  3  Fost.  &  F. 
622. 

After  they  have  received  these  instructions,  they  stand  upon  the  same 
footing  as  other  servants,  and  must  suffer,  without  redress  from  their  em- 
ployers, injuries  resulting  either  from  their  own  negligence  or  that  of  their 
fellow-servants. 

The  only  questions  involved  in  the  principal  case,  about  which  there  can 
be  any  serious  difference  of  opinion,  are,  whether  the  negligence  of  the  per- 
son whom  the  plaintiff  obeyed  is  to  be  regarded  ais  the  negligence  of  his  fel- 
low-servant, and   whether  the  plaintiff  should  have  been  precluded  from 


Feb.  1887.]     Fisk  v,  Centbal  Pacific  R.  R.  Co.  29 

recovery  on  the  ground  that  the  person  whom  he  obeyed  had  no  authority 
to  direct  him  to  enter  upon  the  performance  of  the  dangerous  duty. 

Now,  it  is  conceded  by  all  the  cases  that  the  master  has  a  duty  to  perform 
with  respect  to  instructing  minor  and  inexperienced  servants.  If  this  duty 
may  be  avoided  by  merely  placing  them  under  the  charge  of  an  elder  and 
more  experienced  person,  and  denouncing  the  failure  of  the  person  under 
whose  charge  they  are  thus  placed  to  instruct  them  as  the  mere  negligence 
of  a  fellow-servant,  then  nothing  has  been  gained  by  the  declaration  of  the 
general  principle  that  it  is  the  duty  of  the  master  to  instruct  such  servants. 

The  true  rule,  we  think,  is  this:  that  whenever  the  law  imposes  a  duty 
upon  the  master  it  will  not  permit  him  to  evade  the  performance  of  this  duty 
by  delegating  it  to  another;  and  the  act  or  neglect  of  that  other  is,  with  re- 
spect to  a  person  injured  by  it,  the  act  or  negligence  of  the  master.  As  was 
said  by  the  court  of  appeals  of  New  York,  in  the  case  of  Flike  v.  Boston  and 
Albany  S'y  Co.,  63  N.  Y.  553,  "the  true  rule  is  to  hold  the  corporation  liable 
for  negligence  or  want  of  proper  care  in  respect  to  such  acts  and  duties  as  it 
is  required  to  perform  and  discharge  as  master  or  principal,  without  regard 
to  the  rank  or  title  of  the  agent  intrusted  with  their  performance.  As  to 
such  acts,  the  agent  occupies  the  place  of  the  corporation,  and  the  latter 
should  be  deemed  present,  and  consequently  liable  for  the  manner  in  which 
they  are  performed." 

DowUng  v.  Allen,  74  Mo.  13,  41  Am.  Rep.  298,  was,  in  its  facts,  very 
like  the  principal  case.  The  plaintiff,  being  seventeen  years  of  age,  and 
without  experience  in  the  foundry  business  or  with  machinery,  was  em- 
ployed by  the  defendant.  At  first  his  duties  consisted  in  running  errands 
and  in  sweeping  out.  Afterwards  he  was  employed  in  a  machine-shop,  and 
in  a  yard  where  a  turn-table  w£is  being  constructed  under  the  charge  of 
King,  one  of  his  fellow-servants,  whom  he  had  been  instructed  to  obey  by 
the  defendant's  foreman.  After  plaintiff  had  been  working  about  three 
weeks  at  the  turn-table  with  King,  the  latter  directed  him  to  stop  the 
engine.  The  engine  could  be  reached  in  two  ways,  the  shorter  of  which  was 
to  cross  a  revolving  shaft.  King  directed  the  boy  to  hurry,  and  he  therefore 
took  the  shorter  way,  and  in  stepping  over  the  revolving  shaft,  he  was 
caught  by  it,  and  suffered  the  injuries  for  which  he  sought  compensation  by 
the  action.  The  court  said:  "We  think  the  doctrine  well  settled  by  the 
authorities  that,  although  the  machinery,  or  that  part  complained  of  as  es- 
pecially dangerous,  is  visible,  yet  if  by  reason  of  the  youth  and  inexperience 
of  the  servant  he  is  not  aware  of  the  danger  to  which  he  is  exposed  in  operat- 
ing it  or  approaching  near  to  it,  it  is  the  duty  of  the  master  to  apprise  him 
of  the  danger,  if  known  to  him. " 

The  objection  that  the  plaintiff  was  injured  through  the  negligence  of  his 
fellow-aervant  was  disposed  of  as  follows:  "Nor  do  we  think  that  in  this 
instance  King,  who  gave  the  plaintiff  the  order  to  stop  the  engine,  was  the 
plaintiff's  fellow-servant.  While  it  appears  that  Fisher  was  foreman  of  the 
establishment,  King  had  charge  of  the  construction  of  the  turn-table,  and 
Fisher  directed  the  plaintiff  to  go  with  King  and  do  whatever  he  should 
direct.  In  McQowan  v.  Railroad  Co.,  61  Mo.  528,  'there  was  no  proof  that 
the  conductor  had  the  superintendence  or  control  over  the  men  or  the  work,  or 
power  to  provide  or  replace  machinery.'  Here  King  was  foreman  of  the 
hands  constructing  the  turn-table.  They  were  under  him,  and  the  plaintiff 
was  expressly  ordered  by  Fisher  to  do  whatever  King  told  him.  A  foreman 
of  an  entire  establishment  as  extensive  as  defendant's  cannot  be  everywhere 
present  to  direct  the  employees  in  their  work;    but  must  of  necessity  give 


30  FisK  V.  Central  Pacific  R.  R.  Co.  [Cal. 

orders  through  others,  as  in  this  instance.  In  Marshall  v.  Shricker,  63  Mo. 
309,  relied  upon  by  appellant,  it  was  held  that  'the  employer  cannot  be 
charged  with  negligence  of  one  who  is  merely  a  foreman  over  the  plaintiff 
not  engaged  in  a  distinct  department  of  the  general  service,  but  in  some 
work  with  plaintiff,  and  not  charged  with  any  executive  duties  or  control 
over  plaintiff  which  would  constitute  him  the  agent  of  the  employer.'  Aside 
from  the  fact  that  King  was  foreman  here,  is  the  additional  fact  that  Fisher 
directed  plaintiff  to  do  whatever  King  might  order  him  to  do;  and  he  was  in 
fact  obeying  Fisher  in  executing  King's  order.  If  it  was  negligence  or  reck- 
lessness to  direct  plaintiff  to  perform  the  work  in  the  prosecution  of  which 
he  received  the  injury,  it  was  a  direct  consequence  of  the  order  given  by 
Fisher,  who  was  defendant's  alite?'  ego. " 

The  decision  in  the  principal  case  is  placed  partly  upon  the  ground  that 
the  plaintiff  was  not  justified  in  obeying  David  Snape,  by  the  fact  that  de- 
fendant's vice-principal  had  placed  him  in  Snape's  charge,  with  instructions 
to  yield  him  obedience. 

Snape  was  the  boss  of  the  tool-room;  and  the  court  was  of  the  opinion  that 
the  instruction  given  to  plaintiff  by  the  vice-principal  must  be  interpreted  in 
connection  with  Snape's  apparent  employment,  that  of  boss  of  the  tool-room, 
and  as  not  requiring  or  justifying  the  plaintiff  in  obeying  him  in  respect  to 
matters  not  taking  place  in  such  room.  This  construction  of  the  direction 
given  the  plaintiff  by  defendant's  vice-principal  may  be  correct  as  a  legal 
principle,  and  yet  perhaps  not  be  entirely  conclusive  of  plaintiff's  right  to 
recover.  If  minors  and  other  inexperienced  persons  are  entitled  to  be  warned 
of  the  dangers  of  machinery  in  operation  in  their  presence  and  visible  to 
them,  the  same  careful  and  merciful  spirit  ought  to  exempt  them  from  the 
consequences  of  misinterpreting  language  well  calculated  to  mislead  them, 
and  requiring  for  a  correct  determination  of  its  effect  careful  judicial  delib- 
eration. Even  in  the  case  of  an  adult  employee,  he  cannot  be  expected  to 
enter  into  disputes  with  those  placed  in  authority  over  him.  This  question 
was  carefully  considered,  and  we  think  directly  determined  in  the  case  of 
Cliicago  d;  N.  W.  R.  Co.  v.  Bayfield,  37  Mich.  205. 

Williams  was  a  young  man  in  the  employ  of  the  plaintiff  in  the  capacity 
of  a  common  laborer,  and  Smith  was  in  charge  of  a  construction  train. 
While  Williams  was  on  a  flat-car,  near  the  engine,  assisting  in  unloading 
ties.  Smith  ordered  him  to  go  back  to  the  caboose  and  help  stop  the  train. 
He  started  back,  and  was  not  again  seen  until  it  was  discovered  that  he  had 
fallen  between  the  cars  and  received  injuries  resulting  in  his  death.  In  a 
suit  brought  by  his  administratrix  to  recover  for  such  injuries,  it  was  claimed 
that  no  recovery  could  be  had,  because  Williams  was  not  under  the  direction 
and  control  of  Smith,  nor  subject  to  his  orders.  The  court  to  this  objection 
replied:  *'  The  fact  that  Williams  was  under  no  obligation  to  obey  the  order 
of  Smith  is  not,  in  our  opinion,  sufficient  to  sustain  the  first  proposition. 
When  one  person  engages  in  the  employment  of  another,  he  undertakes  to 
obey  all  lawful  orders,  ^d  he  subjects  himself,  for  any  failure  to  do  so,  to 
the  double  liability  of  being  expelled  from  his  employment  and  of  being  re- 
quired to  pay  damages.  It  is  true,  the  master  had  no  right  to  direct  him  to 
do  anything  not  contemplated  in  the  employment;  but  when  one  thus  con- 
tracts to  submit  himself  to  the  orders  of  another,  there  must  be  some  pre- 
sumption that  the  orders  he  receives  are  lawful,  the  giving  of  the  orders 
A>eing  of  itself  an  assumption  that  they  are  lawful;  and  the  servant  who  re- 
fuses to  obey  would  take  upon  himself  the  burden  of  showing  a  lawful  rea- 
son for  the  refusal.     This  of  itself  is  sufficient  for  excusing  the  servant  who 


Feb.  1887.]     Fisk  v.  Central  Pacific  R.  R.  Co.  31 

declines  the  responaibility  in  any  case  in  which  doubts  can  possibly  exist;  he 
should  assume  that  the  order  is  given  in  good  faith,  and  in  the  belief  that  it 
is  rightful;  and  if,  in  his  own  judgment,  it  is  unwarranted,  it  is  not  for  the 
master  to  insist  that  the  servant  was  in  the  wrong  in  not  refusing  obedience. 
Respect  for  the  master,  as  well  as  a  consideration  for  his  own  interest,  may 
very  properly  induce  him  to  waive  his  o\^n  judgment  for  that  of  his  superior, 
and  instead  of  engaging  in  disputes  and  being  perhaps  ejected  from  his  em- 
ployment, to  leave  questions  of  doubt  for  future  settlement.  Now,  although 
we  think,  on  the  facts,  as  the  jury  has  found  them,  there  was  no  authority  to 
send  Williams  to  handle  brakes,  yet  the  point  was  not  so  clear  but  that 
serious  question  was  made  of  it  on  the  trial;  and  it  would  be  grossly  unjust 
to  compel  the  servant  at  his  peril  to  decide  correctly  on  the  validity  of  an 
order  presumptively  lawful,  when  the  consequences  of  even  a  correct  decision 
might  be  apparent  insubordination,  and  perhaps  difficulty  aud  litigation.  It 
is  perfectly  just,  under  such  circumstances,  to  leave  upon  the  master  the  re- 
sponsibility be  assumed  in  giving  the  unwarranted  order,  and  to  hold  that  the 

servant  is  not  blamable  in  yielding  obedience  to  his  superior Nor  do 

we  think  it  follows  that,  because  Smith  at  the  time  was  exceeding  his  au- 
thority, the  company  is  not  responsible  for  his  action.  It  is  in  general  no 
excuse  to  the  employer  that  the  injury  which  has  occurred  was  caused  by 
disobedience  of  his  orders,  whether  they  be  express  orders  or  implied  orders. 
He  assumes  the  risks  of  such  disobedience  when  he  puts  the  servant  into  his 
business,  and  the  reasons  for  holding  him  responsible  for  the  servant's  con- 
duct are  the  same,  whether  injury  results  from  a  failure  to  observe  the  mas- 
ter's directions,  or  from  a  neglect  of  the  ordinary  precautions  for  which  specifia 
directions  are  deemed  necessary.  It  will  be  conceded  that,  for  a  positive 
wrong  beyond  the  scope  of  the  master's  business,  intentionally  or  recklessly 
done,  the  master  cannot  be  held  responsible;  this  being  very  properly  re- 
garded as  the  personal  trespass  or  tort  of  the  servant  himself.  But  when 
the  wrong  arises  merely  from  an  exercise  of  authority  committed  in  further- 
ing the  master's  interest,  and  the  master  receives  the  benefit  of  the  act,  if  any, 
it  is  neither  reasonable  nor  just  that  the  liability  should  depend  upon  any 
question  of  the  exact  limits  of  the  servant's  authority.  The  master  fixes 
these;  and  it  is  his  duty  to  keep  his  servant,  in  what  is  done  by  him,  within 
the  fixed  limits.  An  act  in  excess  would  still  have  the  apparent  sanction  of 
his  authority;  the  occasion  for  it  would  be  furnished  by  the  employment,  and 
the  injured  party  could  not  always  be  expected  to  know  or  be  able  to  discover 
whether  it  was  or  was  not  without  express  sanction.  In  this  case  Smith  had 
charge  of  the  train  and  of  the  men  employed  with  it.  In  what  he  did  he  was 
not  purposely  committing  any  wrong  outside  the  employment;  but  his  wrong 
was  committed  while  acting  in  the  very  capacity  in  which  he  was  employed, 
and  had  for  its  manifest  purpose,  not  to  injure  Williams,  but  to  advance  the 
interests  of  the  railway  company.  As  between  the  company  and  any  other 
than  a  fellow -servant,  there  could  be  no  question  that  his  act  should  be 
deemed  the  act  of  the  company.  But  we  also  think  that,  where  the  superior 
servant,  by  means  of  an  authority  which  he  exercises  by  delegation  of  tha 
master,  wrongfully  exposes  the  inferior  servant  to  risks  and  injury,  the  mas- 
ter must  respond.  It  is  only  where  the  risks  properly  pertain  to  the  business 
and  are  incident  to  it  that  the  master  is  excused  from  responsibility;  and  a 
risk  of  this  nature,  not  bein^  one  of  the  kind,  the  general  rule  applies,  and 
be  must  answer  for  the  misconduct  of  his  agent." 

Who  are  Fellow-servants.  —  A  yard-laborer  and  a  locomotive-engineer: 
aiicago  and  Alton  R.  R.  Co.  v.  Mui-p/ty,  53  111.  330;  5  Am.  Rep.  48.     A  rail- 


32  FisK  V.  Central  Pacific  R.  R.  Co.  [Cal. 

•way  road -master  and  a  laborer  on  a  culvert:  Lawhr  v.  Androscoggin  R.  R. 
Co.,  62  Me.  463;  16  Am.  Rep.  492.  A  mill-hand  and  other  employees  bound 
to  keep  fire  apparatus  in  order:  Jones  v.  Granite  Mills,  126  Mass.  84;  30 
Am.  Rep.  661.  The  master  of  a  lighter  and  the  crew:  Johnson  v.  Boston 
Tow-boat  Co.,  135  Mass.  209.  Mechanics  in  a  repair  shop:  Murphy  v.  Bos- 
ton  and  Albany  R.  R.  Co.,  88  N.  Y.  146;  42  Am.  Rep.  240,  Road-master 
and  section-hand:  Brownv.  Winona  and  St.  Peter  R.  R.  Co.,  27  Minn.  162;  38 
Am.  Rep.  285.  A  foreman  having  no  power  to  discharge  employees  and  aa 
employee:  Peterson  v.  Whitebreast  Coal  and  Mining  Co.,  50  Iowa,  673;  32  Am. 
Rep.  143;  Keystone  Bridge  Co.  v.  Newbsrry,  96  Pa.  St.  246;  42  Am.  Rep. 
643.  Engineer  and  brakeman:  Nashville  etc,  v.  Wheless,  10  Lea,  741;  43 
Am.  Rep.  317.  Brakeman  and  car-inspector:  Smith  v.  Flint  etc.  R'y  Co.,  46 
Mich.  258;  41  Am.  Rep.  161.  Conductor  and  telegraph  operator  and  fire- 
man: Slaier  v.  Jevxtt,  85  N.  Y.  61;  39  Am.  Rep.  67.  Train-dispatcher  and 
brakeman:  Robertson  v.  Terre  Haute  etc.  R.  R.  Co.,  78  Ind.  77;  41  Am.  Rep. 
552.  Master  and  mate  of  a  vessel:  MattJiews  v.  Case,  61  Wis.  491;  50  Am. 
Bep.  51.  A  baggage- master  on  a  train  and  a  switch -tender:  Roberts  v.  Chi- 
cago etc.  R'y  Co.,  33  Minn.  218.  Conductor  and  employee  on  a  construction 
train  and  another  employee:  Cassidy  v.  Maine  Cent.  R.  R.  Co.,  76  Me.  488. 
Brakeman  and  conductor  acting  as  engineer:  Rodman  v.  Michigan  Cent.  R.  R^ 
Co.,  55  Mich.  57.  Track-repairers  and  hand -car  crew:  O'Brien  v.  Boston  and 
Albany  R.  R.  Co.,  13  Mass.  387;  52  Am.  Rep.  279.  Engineer  and  coupler 
of  a  freight  train:  BocUioright  v.  Railroad  Co.,  25  S.  C.  128.  Watchman  and 
repairer  under  car  on  track:  Luebke  v.  Chicago,  M.,<kS.  P.  R'y  Co.,  63  Wis. 
91;  53  Am.  Rep.  266.  Railroad  yard-master  and  a  car-repairer:  Kirk  v. 
Atlanta  etc.  R.  R.  Co.,  94  N.  C.  625.  Saw-miU  engineer  and  contractor'a 
servant  working  on  wheel:  Uioan  v.  Lippincott,  47  N.  J.  L.  192;  54  Am.  Rep. 
148.  Engine-wiper  employed  in  round-house  and  trainmen:  Ewald  v.  Chi- 
cago d:  N.  W.  R'y  Co.,  Wis.  Sup.  Ct.,  Jan.  1888.  Foreman  at  railroad 
round-house  and  employee  under  him:  Oonsior  v.  Minneapolis  tb  St.  L.  R'p 
Co.,  36  Minn.  385.  A  member  of  a  repairing  gang  and  an  engine-driver: 
Bohbaclc  v.  Railroad  Co.,  43  Mo.  187.  A  master-mechanic  and  locomotive- 
engineer:  Hard  v.  Railroad  Co.,  32  Vt.  473.  Brakeman  of  one  train  and 
the  engineer  of  another:  Wright  v.  Railroad  Co. ,  25  N.  Y.  562.  Watchman 
at  a  street-crossing  and  a  switch-tender:  Sammon  v.  Railroad  Co.,  62  Id. 
251.  An  employee  crossing  the  track  on  his  way  to  work  and  the  engine- 
driver  who  backs  the  engine  upon  him:  Keyes  v.  Railway  Co.,  3  Atl.  Rep. 
15  (Penn.).  Car-repairer  and  a  brakeman:  Railway  Co.  v.  Foster,  11  Am.  & 
Eng.  R.  R.  Cas.  180.  Mechanic  in  repair  shop  and  a  brakeman:  Wonder  v. 
Railway  Co.,  32  Md.  419.  Section-hand  and  engine-driver:  Clifford  v.  Rail- 
way Co.,  6  N.  E.  Rep.  751  (Mass.);  Foster  v.  Railway  Co.,  14  Minn.  360;  Col- 
lins V.  Railway  Co.,  30  Id.  31;  Boldt  v.  Railroad  Co.,  58  N.  Y.  432;  Blake  v. 
Railroad  Co.,  70  Me.  60;  35  Am.  Rep.  297.  Trackman  and  baggage-man: 
Moseley  v.  Chamberlain,  18  Wis.  700.  Section-man  and  brakeman:  Cooper  v. 
Railway  Co.,  23  Id.  668.  Shoveler  on  track  and  conductor:  Naylor  v.  Rail- 
way Co.,  53  Id.  661;  Rowland  v.  Railtoay  Co.,  54  Id.  226;  Heine  v.  Railway 
Co.,  58  Id.  525.  Brakemen  and  trainmen:  WMtwam  v.  Railway  Co.,  58  Id. 
408.  Track-walker  and  fireman:  Schultz  v.  Railway  Co.,  67  Id.  616;  58  Am. 
Rep.  881. 

Who  are  kot  Fellow-servants.  —  The  agent  of  a  railroad  company  to 
hire  men  and  a  foreman  hired  by  him:  Laning  v.  New  York  Cent.  R.  R.  Co., 
49  N.  Y.  521;  10  Am.  Rep.  417.  A  deck-hand  on  steamboat  A  and  the  crew 
of  steamboat  B,  the  owners  being  partners:  Connally  v.  Davidson,  15  MiiUL. 


Feb.  1887.]    Fisk  v.  Central  Pacific  R.  R.  Co.  33^ 

619;  2  Am.  Rep.  154.  A  laborer  in  a  railroad  carpenter-shop  and  a  locomo- 
tive-engineer:  Ft/an  v.  Chicago  etc.  R.  R.  Co.,  60  111.  171;  14  Am.  Rep.  32. 
A  railway  train-dispatcher  and  a  fireman:  FUke  v.  Boston  etc.  R.  R.  Co.,  53 
N.  Y.  549;  13  Am.  Rep.  545.  A  carpenter  having  charge  of  repairs  and  a 
laborer  in  a  brewery:  Malone  v.  Hathaway,  64  N.  Y.  5;  21  Am.  Rep.  573.  A 
superintendent  with  power  to  hire  and  discharge  and  an  employee:  Brotliert 
V.  Cartter,  52  Mo.  373;  14  Am.  Rep.  424;  Corcoran  v.  Holbrooh,  59  N.  Y.  517; 
17  Am.  Rep.  369;  Mullan  v.  Philadelphia  Steamship  Co.,  78  Pa.  St.  25;  21 
Am,  Rep.  2;  Ford  v.  Fitchburg  R.  R.  Co.,  110  Mass.  240;  14  Am.  Rep.  598; 
Gunier  v.  Oraniteville  Mfg.  Co.,  18  S.  C.  362;  44  Am.  Rep.  573;  Mitchell  v. 
Bobinson,  80  Ind.  281;  41  Am.  Rep.  812;  Tyson  v.  N.  &  S.  Ala.  R.  R.  Co.,  61 
Ala.  554;  32  Am.  Rep.  8;  Dowling  v.  Allen,  84  Mo.  13;  41  Am.  Rep.  298; 
Wilson  V.  WilUmantic  Linen  Co.,  50  Conn.  433;  47  Am.  Rep.  653;  Ryan  v. 
Bagaley,  50  Mich.  179;  45  Am.  Rep.  35.  The  conductor,  engineer  of  a  rail- 
way train,  and  a  brakeman:  Cowks  v.  Richmond  and  Danville  R.  R.  Co.,  84 
N.  C.  309;  37  Am.  Rep.  620.  A  superintendent  of  repairs  and  an  engineer: 
Fuller  V.  Jewett,  80  N.  Y.  46;  36  Am.  Rep.  575.  Road-master  and  bridge- 
builder  and  fireman:  Dams  v.  Central  Vt.  R.  R.  Co.,  55  Vt.  84;  45  Am.  Rep. 
690.  A  train-dispatcher  and  an  engineer:  Booth  v.  Boston  etc.  R.  R.  Co.,  73 
N.  Y.  38;  29  Am.  Rep.  97;  Danigan  v.  New  York  etc.  R.  R.  Co.,  52  Conn. 
285;  52  Am.  Rep.  590.  A  track-repairer  and  a  fireman:  Chicago  etc.  R.  R. 
Co.  V.  Moranda,  93  111.  302;  34  Am.  Rep.  168.  One  who  was  engineer,  super- 
intendent, and  conductor  of  a  gravel  train  and  a  train-hand:  Dobbin  v.  Rich- 
mond  and  Danville  R.  R.  Co.,  81  N.  C.  446;  31  Am.  Rep.  512.  Master 
mechanic,  engineer,  and  fireman,  and  track-man:  Ohio  etc.  R'y  Co.  v.  Collam^ 
72  Ind.  261;  38  Am.  Rep.  134.  Foreman  and  car-repairer:  LtubJce  v.  Chicago 
etc.  R'y  Co.,  59  Wis.  127;  48  Am.  Rep.  483.  A  section-foreman  and  a  brake- 
man:  Leuns  v.  St.  Louis  etc.  R.  R.  Co.,  59  Mo.  495;  21  Am.  Rep.  385.  A 
superintendent  and  foreman  and  a  conductor:  Patterson  v.  Pittsburgh  etc 
R.  R.  Co.,  76  Pa.  St.  389;  18  Am.  Rep.  412.  A  conductor  and  a  section- 
forenuui  and  a  brakeman:  Moon's  Adm'r  v.  Richmond  etc.  R.  R.  Co.,  78  Va. 
745;  49  Am.  Rep.  401.  Conductor  of  a  construction  train  and  a  laborer: 
Chicago  etc  R'y  Co.  v.  Swanson,  16  Neb.  254;  49  Am.  Rep.  718.  A  car-in- 
spector and  a  car-coupler:  Tiemey  v.  Minneapolis  etc  R.  R.  Co.,  33  Minn.  11; 
63  Am.  Rep.  35.  Locomotive-engineer  and  track-repairer:  Calvo  v.  Char- 
lotte etc.  R.  R.  Co.,  23  S.  C.  526;  55  Am.  Rep.  28.  Laborer  for  contractor  in 
building  a  railroad  and  locomotive-engineer  in  employ  and  under  control  of 
the  railroad  company:  Louisville  etc.  R.  R.  Co.  v.  Conroy,  63  Miss.  562;  56  Am. 
Rep.  525.  A  railway  section-foreman  and  locomotive-engineer:  St.  Louis  etc 
R'y  Co.  V.  Weaver,  35  Kan.  412;  57  Am.  Rep.  176.  Locomotive-engineer  and 
conductor  and  telegraph  operator:  Maddens  Adm'r  v.  Chesapeake  and  Ohio 
R'y  Co.,  28  W.  Va.  610;  57  Am.  Rep.  695.  Stevedore's  foreman  and  his 
laborers:  Brown  v.  Sennett,  68  Cal.  225;  58  Am.  Rep.  8.  Locomotive  boiler- 
repairers  and  engineer  and  fireman:  Pennsylvania  etc  Canal  it  R.  R.  Co.  v. 
Mason,  109  Pa.  St.  296;  58  Am.  Rep.  722.  Conductor  of  material  train  and 
laborer:  Coleman  v.  Wilmington  etc  R.  R.  Co.,  25  S.  C.  446;  60  Am.  Rep.  616. 
Train-dispatcher  and  train-men:  Lewis  v.  Si^ert,  Penn.  Sup.  Ct.,  Oct  3, 1887; 
37  Alb.  L.  J.  162;  SmiUi  v.  Wabash  etc  R'y  Co.,  92  Mo.  359. 
Am.  Bt.  Bit.,  Vol.  I.  — 8 


34  Anderson  v.  Goff.  [CaL 

[Ik  Bank.] 

Anderson  v.  Gopp. 

f72  CALiFORinA,  65.] 
lilBXAKB  m  NoTlCB  ov  APPEAL,  whereby  the  judgment  appealed  from  is 
described  as  entered  on  the  day  when  the  judgment  was  rendered,  in- 
stead of  the  day  on  which  it  was  entered,  does  not  entitle  the  respondent 
to  a  dismissal  of  the  appeal. 

JtnXJMKNT  AGAINST    INSOLVENT  E!nTERED  AFTER    GrANTINO  OF    DiSCHAROB 

is  conclusive  against  him,  if  regularly  obtained. 

ArFTDAViT  FOR  SERVICE  OF  SUMMONS  is  sufficient  whcu  it  shows  a  cause  of 
action  against  the  defendant,  and  that  he  is  a  resident  at  a  place  in 
another  state,  which  place  and  state  are  named  in  such  affidavit.  In 
such  circumstances  it  is  not  necessary  to  show  an  attempt  to  find  the 
defendant  in  the  county  or  state  where  the  action  is  pending;  nor  is  it 
necessary  to  show  that  an  attachment  has  issued  against  his  property. 

After  Attachment  of  Property,  No  Order  of  Sale  is  necessary  to 
authorize  the  sale  thereof,  the  lien  of  the  attachment  continues  after 
taking  a  simple  money  judgment,  without  embodying  therein  any  direc- 
tions for  the  sale  of  the  attached  property. 

Personal  Judgment  against  Non-resident  whose  property  has  been 
attached  within  the  state  is  valid,  and  sufficient  to  sustain  a  sale  of  such 
property  made  under  such  judgment,  though  the  service  of  summons 
was  by  publication. 

Order  for  Publication  of  Summons  directing  a  deposit  of  a  copy  of  the 
summons  in  the  post-office,  but  omitting  the  word  "  forthwith  "  in  such 
direction,  is  not  void  because  of  such  omission,  and  will  sustain  a  ser- 
vice, where  such  deposit  was  in  fact  made  on  the  same  day  the  order 
was  signed. 

Forthwith,  when  Applied  to  Performance  of  Act,  signifies  as  soon  as, 
by  reasonable  exertion,  it  may  be  performed.  It  also  sometimes  means 
within  a  reasonable  time,  or  with  all  reasonable  dispatch;  and  when  a 
defendant  is  directed  to  plead  forthwith,  he  must  plead  within  twenty- 
four  hours. 

Continuance  of  Publication  of  Summons  beyond  the  time  required  by 
the  order  of  the  court  does  not  extend  the  time  in  which  defendant  is 
required  to  answer. 

Attorney  of  Plaintiff  may  Deposit  Copy  of  Summons  and  complaint 
in  post-office,  and  his  affidavit  that  he  did  so  is  competent  evidence. 

Return  on  Attachment  is  Sufficient  as  against  a  collateral  attack,  when 
it  states  that  the  officer  "duly  levied  upon  all  the  right,  title,  and  inter- 
est of  the  defendant  in  and  to  the  following  real  property,  to  wit "  (de- 
scribing the  land  in  controversy). 

Ejectment.  Both  parties  claim  title  under  one  Anderson. 
The  plaintiff  recovered  judgment  in  the  superior  court.  De- 
fendant appealed.  A  motion  was  made  to  dismiss  the  appeal, 
on  the  ground  that  it  designated  the  judgment  appealed  from 
as  having  been  entered  March  29, 1884,  while  the  record  shows 
the  judgment  to  have  been  entered  April  30,  1884.  The  other 
facts  are  stated  in  the  opinion. 


Feb.  1887.]  Anderson  v.  Gofp.  85 

O.  B.  Montgomery f  and  Burchard  and  Scott,  for  the  appel- 
lant. 

Briggs  and  Hawkins,  and  McCroskey  and  Hudner,  for  the 
respondent. 

By  Court,  Searls,  C.  The  motion  to  dismiss  the  appeal 
herein  is  met  by  a  certificate  of  the  clerk  of  the  superior  court 
in  and  for  the  county  of  San  Benito,  in  which  county  the 
action  was  brought  and  passed  to  judgment,  showing  that  the 
statement  on  motion  for  new  trial  was  properly  settled  and 
certified  by  the  judge  of  the  superior  court;  that  the  order  over- 
ruling the  motion  for  a  new  trial  was  entered  and  signed  by 
the  judge  on  May  31,  1884,  and  that  the  judgment  in  said 
cause  was  rendered  on  the  twenty-ninth  day  of  March,  1884, 
and  entered  on  the  thirtieth  day  of  April,  1884,  before  the 
notice  of  appeal  was  filed. 

The  motion  to  dismiss  the  appeal  should  be  denied. 

The  appeal  is  taken  by  plaintiff  from  a  judgment  in  favor 
of  defendant,  and  from  an  order  denying  a  new  trial.  The 
action  is  ejectment  to  recover  a  lot  of  land  containing  one  and 
one  half  (1^)  acres  situate  in  what  is  known  as  College  addition 
to  the  town  of  Hollister,  San  Benito  County,  and  to  recover 
damages  for  the  withholding  such  land,  and  rents  and  profits. 

Plaintifi",  at  the  several  dates  hereinafter  mentioned,  was 
and  still  is  a  married  woman,  the  wife  of  J.  G.  Anderson. 

On  the  tenth  day  of  November,  1876,  one  W.  C.  Land,  be- 
ing the  owner  of  and  in  possession  of  the  premises  described 
in  the  complaint,  conveyed  the  same  to  plaintifi^'s  husband, 
and  took  from  the  latter  his  promissory  note  for  six  hundred 
dollars,  the  purchase  price  thereof. 

On  the  tenth  day  of  November,  1878,  Anderson  gave  Land 
a  new  note  for  three  hundred  dollars,  the  residue  of  the  pur- 
chase price  of  the  land  having  been  previously  paid. 

On  the  26th  of  April,  1880,  according  to  the  findings,  An- 
derson, being  insolvent,  and  unable  to  pay  his  debts,  being 
indebted  to  various  persons  in  sums  aggregating  over  four 
thousand  dollars,  and  among  others  to  Land,  on  account  of 
said  note,  in  the  sum  of  over  three  hundred  dollars,  in  con- 
templation of  insolvency,  and  for  the  purpose  of  hindering, 
delaying,  and  defrauding  his  said  creditors,  among  whom  was 
said  Land,  conveyed  without  consideration,  and  as  a  gift,  the 
land  in  question  to  his  wife,  the  plaintiff  herein.  Plaintiff 
never  went  into  possession  of  the  land,  and  knew  of  the  in- 


36  Anderson  v.  Goff.  [Cal. 

solvency  of  her  husband.  The  deed  was  recorded  April  28, 
1880. 

On  May  6, 1880,  Anderson  filed  his  petition  and  schedule  in 
insolvency  in  Alameda  County,  to  which  he  had  removed,  and 
such  proceedings  were  had  therein,  that  he  was  adjudged  an 
insolvent  debtor,  and  afterward,  on  the  fourth  day  of  August, 
1880,  was  discharged  from  his  debts.  He  removed  soon  there- 
after to  Colorado,  where  with  plaintifif  he  still  resides. 

On  February  16,  1881,  Land  brought  suit  against  Anderson 
on  his  note,  sued  out  a  writ  of  attachment,  and  caused  the 
same  to  be  levied  upon  the  interest  of  the  defendant  therein 
in  and  to  the  demanded  premises.  Service  of  summons  was 
had  upon  Anderson  by  publication,  etc.,  and  upon  his  default 
for  want  of  an  answer  judgment  was  taken  in  favor  of  plain- 
tifif, upon  which  an  execution  issued,  was  levied  upon  the  prop- 
erty attached,  and,  after  notice,  a  sale  was  had,  at  which  Land 
became  the  purchaser,  and  in  due  time,  there  having  been  no 
redemption,  received  a  sheriff's  deed  of  the  premises. 

Defendant  holds  the  property  by  sundry  mesne  conveyances 
from  Land,  and  has  been  in  possession  under  his  deed  since 
August,  1882. 

We  may  dismiss  from  consideration  the  proceedings  of  An- 
derson in  insolvency,  for  the  reason  that  if  the  judgment  of 
Land  was  regularly  obtained,  the  former  is  concluded  thereby 
for  want  of  a  plea  of  his  discharge  in  that  action. 

Several  objections  are  made  by  appellant  to  the  affidavit  for 
publication  of  summons,  among  which  are,  —  1.  That  it  fails 
to  state  that  any  writ  of  attachment  was  issued  or  levied,  or 
that  the  defendant  therein  had  any  property  in  this  state; 
2.  That  it  failed  to  show  any  attempt  at  service  in  this  state,  or 
any  return  of  an  officer  that  defendant  could  not  be  found,  etc. 

Our  Code  of  Civil  Procedure,  sections  412  and  413,  provides 
that  when  the  person  on  whom  service  is  to  be  made  resides 
out  of  the  state,  or  has  departed  from  the  state,  or  cannot 
after  due  diligence  be  found  within  the  state,  or  conceals  him- 
self to  avoid  the  service  of  summons,  etc.,  and  the  fact  ap- 
pears by  affidavit  to  the  satisfaction  of  the  court,  or  a  judge 
thereof,  and  it  also  appears  by  such  affidavit,  or  by  the  veri- 
fied complaint  on  file,  that  a  cause  of  action  exists  against  the 
defendant  in  respect  to  whom  service  is  to  be  made,  or  that  he 
is  a  necessary  or  proper  party  to  the  action, — an  order  of  ser- 
vice by  publication  of  summons  may  be  made,  etc. 

The  affidavit  in  this  case  showed  that  the  plaintiff  had  a 


Feb.  1887.]  Anderson  v.  Goff.  37 

cause  of  action  against  the  defendant  therein,  and  also  re- 
ferred to  his  complaint  containing  a  like  showing,  and  duly 
verified.  He  also  showed  by  the  affidavit  that  defendant  was 
a  resident  of  Denver,  in  the  state  of  Colorado,  and  was  there 
engaged  in  business,  etc. 

The  affidavit  was  sufficient  to  warrant  an  order  of  service  of 
the  summons  by  publication. 

Where  a  defendant  is  phown  to  be  a  resident  of  another 
state,  and  his  place  of  residence  is  known,  it  is  not  necessary 
to  show  diligence  in  finding  him  in  the  county  or  state  where 
the  action  is  pending,  or  to  have  the  return  of  an  officer  show- 
ing that  he  cannot  be  found.  Nor  was  it  necessary  to  show 
by  the  affidavit  that  a  writ  of  attachment  had  issued,  or  that 
the  defendant  had  property  in  this  state. 

Our  statute  gives  the  right  to  service  of  summons  upon  de- 
fendants in  all  cases  where  they  are  non-residents  of  the  state, 
without  reference  to  the  fact  of  their  having  or  not  having 
property  here.  The  effect  of  a  judgment  thus  obtained  is 
quite  another  thing. 

In  Pennoyer  v.  Neff,  95  U.  S.  714,  it  was  held  by  the 
supreme  court  of  the  United  States  that  although  a  state 
having  property  of  a  non-resident  within  her  territory  may 
hold  and  appropriate  it  to  satisfy  the  claim  of  her  citizens 
against  him,  and  her  tribunals  may  inquire  into  his  obligation 
to  the  extent  necessary  to  control  the  disposition  of  that  prop- 
erty, yet  in  the  absence  of  such  seizure,  a  personal  judgment 
is  without  validity  if  it  be  rendered  by  a  state  court  in  an 
action  upon  a  money  demand  against  a  non-resident,  who  was 
served  by  publication  of  summons,  but  upon  whom  no  per- 
sonal service  of  process  within  the  state  was  made,  and  who 
did  not  appear. 

The  same  doctrine  was  laid  down  substantially  in  Belcher  v. 
Chambers,  53  Cal.  G36,  in  which  it  was  held  that,  although  a 
state  having  property  of  a  non-resident  within  her  territory 
may  hold  and  appropriate  it  to  satisfy  the  claim  of  her  citi- 
zen against  him,  and  her  tribunals  may  inquire  into  his  obli- 
gation to  the  extent  necessary  to  control  the  disposition  of  that 
property,  yet  in  the  absence  of  a  seizure  of  such  property,  a 
personal  judgment  is  without  validity,  if  it  be  rendered  by  a 
state  court  in  an  action  upon  a  money  demand  against  a  non- 
resident who  was  served  with  summons  by  publication  only, 
and  who  did  not  appear  in  the  action,  and  the  personal  judg- 
ment was  held  void. 


88  Anderson  v.  Goff.  [Cal. 

The  right  to  institute  and  prosecute  an  action  against  a 
non-resident,  and  to  serve  summons  upon  him  by  publication, 
is  by  these  cases  upheld,  so  far  as  may  be  necessary  to  de- 
termine his  liability,  with  a  view  of  subjecting  his  property  to 
the  payment  of  a  debt  due  to  a  resident;  provided  always, 
that  such  action  must  be  in  aid  of  an  attachment,  or  some 
other  process  designed  to  reach  and  establish  a  lien  upon  the 
debtor's  property  within  the  local  jurisdiction. 

Now,  in  this  state  we  have  one  specific  mode  by  which  to 
acquire  a  lien  upon  the  property  of  a  debtor  against  whom  a 
cause  of  action  exists  arising  out  of  contract.  It  consists  in 
commencing  an  action,  and  praying  for  judgment  as  in  other 
cases;  and  upon  filing  a  proper  affidavit  and  undertaking,  a 
writ  of  attachment  issues,  under  which  the  property  of  the  al- 
leged debtor  may  be  seized  and  held  subject  to  eale  for  the 
purpose  of  satisfying  such  judgment  as  may  be  recovered. 
The  judgment,  when  rendered,  does  not  differ  from  that  en- 
tered in  other  cases  upon  a  money  demand. 

"  If  judgment  be  recovered  by  the  plaintiff,  the  sheriff  must 
satisfy  the  same  out  of  the  property  attached  by  him  which 
has  not  been  delivered  to  the  defendant,"  etc.:  Code  Civ. 
Proc,  sec.  550. 

By  force  of  section  688  of  the  same  code,  "  all  property  and 
rights  of  property  seized  and  held  under  attachment  in  the 
action  are  liable  to  execution." 

Under  these  provisions  it  has  been  held  by  this  court  that 
no  order  of  sale  by  the  court  is  necessary  to  authorize  the 
eheriflF  to  sell  the  attached  property,  and  that  the  lien  of  the 
attachment  is  not  lost  by  taking  a  simple  money  judgment, 
without  embodying  therein  directions  for  the  sale  of  the  at- 
tached property:  Low  v.  Henry,  9  Cal.  538. 

In  Bagley  v.  Ward,  37  Cal.  121,  99  Am.  Dec.  256,  it  was 
held  that  "  when  a  judgment  is  rendered  in  an  attachment 
suit,  and  becomes  a  lien  on  real  property  attached,  the  lien  of 
the  attachment  is  merged  in  the  judgment"  ;  and  in  Porter  v. 
Pico,  55  Id.  174,  it  is  said:  "  But  the  judgment  does  not  oper- 
ate so  as  to  release  or  obliterate  the  attachment  lien.  The 
property  attached  is  still  in  contemplation  of  law  in  the  hands 
of  the  officer,  subject  to  the  judgment.  The  attachment  lien 
still  exists  so  as  to  confer  a  priority  in  the  lien  of  the  judg- 
ment  The  property  is  sold   under  the  final   process 

issued  on  the  judgment." 

Had  our  courts  adopted  the  practice  in  cases  where  attach- 


Feb.  1887.]  Anderson  v.  Gofp.  99 

ments  are  issued,  of  declaring  the  lien  of  the  attachment  in 
the  judgment,  and  directing  the  attached  property  to  be  sold 
in  satisfaction  of  such  lien,  the  orderly  connection  between 
the  lien  and  the  rights  accruing  to  a  purchaser  under  a  sale 
thereunder  would  be  more  readily  apparent,  but  in  the  light 
of  the  interpretation  given  to  the  statutes,  and  to  the  judg- 
ments in  such  cases,  the  same  result  is  reached. 

In  view  of  this  result,  we  think  it  must  follow  that  while  a 
personal  judgment  against  a  non-resident  debtor  who  is  only 
served  with  process  by  publication  is  void  and  of  no  effect, 
yet  in  a  case  where  the  debtor  has  property  within  the  state, 
which  is  seized  under  a  writ  of  attachment  issued  in  the  cause 
at  the  time  the  suit  is  brought,  a  judgment  therein,  which, 
though  general  in  its  terms,  has  the  ejQfect  of  perpetuating  the 
attachment  lien,  and  of  subjecting  the  attached  property  to 
the  payment  of  a  debt  due  from  the  non-resident,  is  so  far  in 
the  nature  of  a  proceeding  in  rem  as  to  uphold  a  sale  of  the 
attached  property,  and  considered  for  that  purpose  and  to  that 
extent  is  not  void. 

It  is  the  method,  and  only  method,  pursued  in  our  courts 
for  subjecting  the  property  of  a  non-resident  debtor  to  the 
payment  of  demands  due  from  him  to  our  citizens,  and  the 
object  sought  is  the  essential  thing  to  be  considered,  and  is 
of  more  importance  than  the  means  by  which  the  end  is 
attained. 

The  facts  that  defendant  had  property  in  this  state,  that  a 
writ  of  attachment  issued  in  the  cause  was  levied  thereon,  and 
the  property  sold  in  satisfaction  of  the  claim,  are  all  in  proof. 

The  existence  of  these  facts  are  essential  to  the  validity  of 
the  proceedings. 

The  requirements  of  the  affidavit  for  publication  of  sum- 
mons are  to  be  measured  by  our  code,  and  the  facts  that 
defendant  has  property  in  this  state,  and  that  a  writ  of  attach- 
ment has  issued,  are  not  among  them. 

The  decisions  quoted  from  the  New  York  courts  have  no 
application  here,  for  the  reason  that  the  statute  of  that  state 
is  essentially  diflTerent  from  our  own.  There  service  of  sum- 
mons can  only  be  had  against  a  non-resident  of  the  state  who 
"has  property  therein,"  etc.:  New  York  Code,  sec.  135. 

Under  such  a  statute,  the  ownership  of  property  in  the 
state  becomes  a  jurisdictional  fact  necessary  to  be  stated  in 
the  affidavit. 

The  order  of  service  of  summons  by  publication,  after  stat- 


iO  Anderson  v.  Goff.  [Cal. 

ing  the  jurisdictional  facts,  and  ordering  publication  in  a 
designated  paper  for  two  months,  directed  a  copy,  etc.,  to  bo 
deposited  in  the  post-office,  etc.,  directed  to  defendant,  etc., 
but  failed  to  include  in  such  direction  the  word  "  forthwith," 
as  contained  in  section  413,  Code  of  Civil  Procedure. 

"  The  court  or  judge  must  direct  a  copy  of  the  summons 
and  complaint  to  be  forthwith  deposited  in  the  post-office, 
directed  to  the  person  to  be  served  at  his  place  of  residence." 

The  term  "  forthwith,"  when  applied  to  the  performance  of 
an  act,  imports  that  it  shall  be  performed  as  soon  as  by  reason- 
able exertion  confined  to  that  object  it  might  be;  and  which 
must  consequently  vary  according  to  the  circumstances  of  each 
particular  case:  3  Chitty's  General  Practice,  112. 

In  Roberts  v.  Brett,  36  Eng.  L.  &  Eq.  358,  it  was  held  to 
mean  "  within  a  reasonable  time." 

When  a  defendant  is  ordered  to  plead  forthwith,  he  must 
plead  within  twenty-four  hours:  Wharton's  Law  Dictionary. 
In  other  matters  of  practice,  the  word  has  come  to  have  the 
same  meaning:  2  Edw.  Ch.  328;  Moffatt  v.  Dichon,  3  Col.  313; 
Bouvier's  Law  Dictionary. 

Like  the  term  "  immediately,"  it  is  not  in  law  to  be  neces- 
sarily construed  as  a  time  immediately  succeeding  without  an 
interval,  but  an  efiectual  and  lawful  time,  allowing  all  the 
"adjuncts  and  accomplements "  necessary  to  give  an  act  full 
legal  efiect  to  be  performed. 

In  Van  Wyck  v.  Hardy,  20  How.  Pr.  222,  11  Abb.  Pr.  473, 
the  word  "forthwith"  was  construed  as  synonymous  with 
"  all  reasonable  dispatch." 

The  deposit  of  a  copy  in  the  post-office  was  made  on  the 
day  the  order  was  signed,  and  we  are  of  opinion  that  the 
omission  of  the  word  "  forthwith  "  from  the  order  requiring 
snch  deposit  was  at  most  an  irregularity  which  did  not  render 
the  proceedings  void,  but  which  might  perhaps  have  been  good 
cause  to  set  aside  the  proceedings  for  irregularity  on  a  direct 
motion  for  that  purpose. 

The  default  was  not  prematurely  taken.  The  summons  was 
published  from  February  19,  1881,  for  two  months,  which  ex- 
pired April  20th.  The  defendant  then  had  thirty  days  in 
which  to  answer,  which  expired  May  21,  1881,  and  the  default 
was  not  entered  until  May  27th  following.  The  fact  that  the 
newspaper  continued  to  publish  the  summons  until  May  7th 
did  not  have  the  effect  to  extend  the  time  to  answer  beyond 
the  periods  fixed  by  the  order  of  publication  and  the  statute. 


Feb.  1887.]  Anderson  v.  Goff.  41 

The  deposit  of  a  copy  of  summons  and  complaint,  prepaid, 
in  the  post-oflRce  by  N.  C.  Briggs,  the  attorney  of  plaintiff,  and 
his  affidavit  of  that  fact,  was  sufficient. 

The  provisions  of  section  410,  in  relation  to  service  of  sum- 
mons upon  a  defendant  personally,  have  no  application  to  the 
deposit  of  a  copy  in  the  post-office,  the  affidavit  of  performance 
of  which  act  is  provided  for  by  the  third  subdivision  of  sec- 
tion 415. 

We  think  the  judgment  roll  in  Land  v.  Anderson  was  good 
as  against  a  collateral  attack,  and  was  properly  admitted  in 
evidence:  McCauley  v.  Fulton,  44  Cal.  355. 

The  objection  made  to  the  manner  of  levying  the  attachment 
is  not  tenable. 

The  court  finds  that  it  was  duly  levied  upon  the  land  in 
question,  and  the  finding  is  supported  by  the  return  of  the 
officer,  in  which  he  certifies  that  he  "  duly  levied  upon  all  the 
right,  title,  and  interest  of  the  said  J.  G.  Anderson  in  and  to 
the  following  real  property,  to  wit "  (describing  the  land  in 
dispute). 

Under  the  ruling  of  the  court  in  Porter  v.  Pico,  supra,  this 
was  sufficient  as  against  a  collateral  attack. 

Like  considerations  apply  to  the  objection  urged  to  the  re- 
turn on  execution. 

These  views  render  the  other  questions  raised  in  the  record 
unimportant. 

We  are  of  opinion  the  judgment  and  order  appealed  from 
Bhould  be  affirmed. 

Belcher,  C.  C,  and  Foote,  C,  concurred. 

The  Court.  For  the  reasons  given  in  the  foregoing  opinion, 
the  judgment  and  order  are  affirmed. 


JuDOMENT  AOAINST  NoN-BE3iDENT3.  — After  the  decision  in  Permoyer  v. 
Neff,  95  U.  S.  714,  somo  apprehension  was  felt  that  there  might  be  no  mode 
of  subjecting  the  property  of  non-resident  debtors,  situate  in  this  state,  to 
the  claims  of  their  creditors.  The  only  proceeding  which  the  statute  of  tha 
state  had  contemplated  as  the  basis  of  its  jurisdiction  over  the  persons  of  de< 
fendants  was  the  issue  and  service  of  summons.  But  this  service,  when 
made  beyond  the  state,  upon  one  not  then  a  citizen  thereof,  was  of  itself 
clearly  insufficient  to  bring  him  within  the  jurisdiction  of  the  court.  Ths 
principal  case,  however,  declares  that  proceedings  under  attachment,  though 
they  do  not  result  in  any  taking  of  the  property  into  the  possession  of  tha 
court,  nevertheless  bring  it  within  the  jurisdiction,  so  as  to  bind  it  by  a  per- 
sonal judgment  subsequently  entered  in  the  action  and  based  upon  the  con* 
■tructive  service  of  process  on  a  non-resident. 


42  Krugeb  v.  Western  Fire  etc.  Ins.  Co.  [Cal. 

Kruger  V,  Western  Fire  and    Marine   Insur- 
ance Company. 

172  CALiyOBNIA,  91.] 

GE5TRAL  Agent  of  Fike  Insurajjcb  Company  may  waire  a  condition  in- 
serted in  the  policy  issued  by  the  company.  Condition  in  policy  of  in- 
surance is  waived  by  the  issuing  of  such  policy  by  a  general  agent,  who 
at  that  time  knows  of  and  assents  to  facts  which  constitute  a  breach  of 
such  condition. 

Waiver  of  Breach  of  Condition  at  Issuance  of  Policy  of  insurance  con- 
tinues in  favor  of  all  renewals  granted  of  such  policy. 

S.  C.  Van  Ness,  for  the  appellant. 

D.  M.  Delmas  and  George  Lezinsky,  for  the  respondents. 

By  Court,  Foote,  C.  This  was  an  action  to  recover  upon 
two  policies  of  insurance.  The  cause  was  tried  before  a  jury, 
who  brought  in  a  verdict  in  favor  of  the  plaintiffs,  upon  which 
a  judgment  was  rendered  against  the  defendant  for  fifteen 
hundred  dollars,  costs,  etc.  From  that  judgment  an  appeal 
is  prosecuted. 

From  that  record  it  appears  that  in  the  year  1881  Grant 
Lapham,  the  agent  of  the  defendant  in  the  county  of  Alameda, 
where  the  plaintiffs  kept  their  stock  of  goods,  was  at  the  place 
of  business  of  the  plaintiffs,  and  examined  said  stock,  and  that 
on  the  thirty-first  day  of  August,  1881,  after  such  examination, 
the  defendant  issued  a  policy  of  insurance  upon  the  stock  of 
goods  thus  examined  by  its  agent. 

The  testimony  of  one  of  the  plaintiffs  with  reference  to  the 
transaction  was  as  follows:  — 

"Yes,  sir;  I  did  have  a  conversation  with  him," — meaning 
Lapham. 

"  First,  you  know,  we  insured  with  another  man.  The  agent 
came  round  and  insured  us.  That  was  right  before  the  Fourth 
of  July.  He  did  not  bring  around  the  policy;  he  kept  the 
policy.  During  the  Fourth  we  did  not  have  any  policy  at  all. 
Right  after  the  Fourth  he  brought  it  around.  I  said:  'You 
just  bring  it  around  now.  There  is  no  danger  now.'  That 
was  before  *  the  danger  is  over  now,'  I  says.  '  You  can  keep  it 
now.'  He  left  it  in  the  store;  left  it  there  over  a  week.  I  told 
him  I  would  not  accept  it.  Then  during  the  week  I  read  over 
the  policy  what  he  left  there.  It  mentioned  something  about 
the  coal-oil.  During  that  time  Mr.  Grant  Lapham  came  around 
and  said  he  wanted  to  insure  us.  I  told  him  about  this.  He 
was  a  friend  of  mine.     I  told  him  about  this  that  was  in  the 


Feb.  1887.]     Kruger  v.  "Western  Fire  etc.  Ins.  Co.  43 

policy.  *  What  is  the  use  of  insuring?  We  cannot  get  nothing 
if  we  burn  out.  Because  it  says  there  mentions  about  the 
coal-oil.'  *  He  says  such  a  small  amount  as  you  keep,  that 
won't  be  any  matter.  You  don't  keep  any  large  amount.'  I 
told  him  all  right;  go  on  and  insure  us.  Then  he  brought 
around  the  policy;  so  it  was  all  right.     We  kept  it." 

It  was  further  proved  that  upon  the  expiration  of  the  policy 
thus  issued  in  August,  1881,  and  at  the  expiration  of  each  year 
thereafter,  down  to  and  including  the  issuance  of  the  policies 
in  suit,  new  policies  in  the  same  company  upon  the  same  de- 
scription of  goods  were  issued  by  defendant  to  plaintiffs. 

No  further  conversations  with  any  agent  of  the  defendant 
were  proved,  nor  were  any  other  policies  than  those  in  suit  in- 
troduced on  the  trial. 

It  appeared  in  evidence  that  there  was  an  indorsement  oq 
said  policies  as  follows:  — 

"  Not  valid  until  countersigned  by  the  regularly  authorized 
agent  at  Oakland,  Alameda  County,  Cal.  Countersigned  Oak- 
land. Grant  Lapham." 

The  record  further  shows  that  during  all  the  times  that  the 
policies  sued  on  were  in  force,  and  at  the  time  of  the  fire  and 
loss  in  the  complaint  alleged,  the  plaintiffs  kept,  stored,  used, 
and  sold  upon  the  premises  in  which  the  property  described 
in  the  policies  was  during  such  time  kept,  the  products  of  petro- 
leum, consisting  of  illuminating  oils;  that  the  said  oils  were 
kept  in  a  ten-gallon  tank,  into  which  they  were  poured  at  the 
top,  and  from  which,  when  required  by  customers,  they  were 
drawn  through  a  faucet;  that  tlie  premises  were  lighted  with 
said  oils  in  lamps;  and  that  the  fire  alleged  in  the  complaint 
was  directly  caused  by  the  fall  of  one  of  the  said  lamps;  that 
the  tank  in  which  said  oils  were  kept  was  the  same  tank  that 
had  been  used  by  the  plaintiffs  on  said  premises  during  all  the 
times  they  had  carried  on  business  on  said  premises,  and  that 
it  had  during  all  of  said  times  stood  directly  opposite  within 
a  few  feet  of  the  entrance  to  said  premises,  and  in  full  view  of 
every  one  who  entered  the  same;  that  no  other  oils  were  kept 
by  the  plaintiffs  on  said  premises,  except  those  kept  in  said 
tank,  and  plaintiffs  also  used  said  tank  for  the  purpose  of  fill- 
ing the  lamps  used  for  lighting  said  premises. 

The  policies  of  insurance  contained,  among  others,  thi» 
clause:  — 

"  C.  This  company  shall  not  be  liable  for  loss  occurring 
while  any  of  the  following-named  articles  are  kept,  stored,  or 


44  Kbuger  v.  Western  Fire  etc.  Ins.  Co.  [Cal. 

used  in  or  on  the  premises  herein  described,  any  custom  or 
usage  of  trade  or  manufacture  to  the  contrary  notwithstanding, 
namely:  petroleum  and  its  products.' 

It  will  be  seen  that  the  plaintiffs,  having  kept  petroleum 
and  its  products  on  the  premises  in  question,  although  in  small 
quantity,  could  not  recover  on  the  policies,  unless  it  should 
appear  that  the  condition  of  the  policy  upon  that  subject  had 
been  waived  by  the  company. 

The  acts  and  language  of  Lapham  as  above  stated  are  not 
contradicted,  nor  is  it  disputed  that  he  was  the  regularly  con- 
stituted agent  of  the  company  resident  at  Oakland  when  the 
first  policy  of  insurance  was  issued. 

The  policies  sued  on  were  unquestionably  but  renewals  of 
that  policy,  and  we  think  that  an  agent,  so  appointed  and  au- 
thorized as  he  was,  was  empowered  to  waive  the  condition  of 
the  policy,  and  we  are  of  opinion  that  the  plaintiffs  were  war- 
ranted, from  what  he  said  and  did,  in  believing,  and  did  believe, 
that  such  condition  was  waived.  Lapham  was  the  general 
agent  of  the  company  at  Oakland,  and  authorized  to  represent 
it,  make  contracts  of  insurance,  and  transact  its  business  at 
that  place  according  to  the  practice  and  course  of  dealing  of 
such  corporations.  He  was  authorized  to  make  and  did  make 
the  original  contract  of  insurance;  and  the  policies  in  suit, 
being  but  renewals  of  that,  are  to  be  affected  by  his  acts  as  if 
they  were  the  original  contract:  Miner  v.  Phcenix  Ins.  Co.,  27 
Wis.  693;  9  Am.  Rep.  479,  and  cases  cited. 

The  agent  of  the  defendant  authorized  to  act  for  them,  and 
by  whose  acts  they  were  bound,  knew  when  he  countersigned 
and  delivered  the  policy  that  it  was  absolutely  void,  unless  he 
had  waived  the  condition  of  the  policy,  by  means  of  the  alleged 
existence  of  which  the  company  now  seeks  to  avoid  the  pay- 
ment of  the  loss;  that  is  to  say,  the  agent  and  the  company 
took  the  premium,  and  yet  believed  the  policy  was  void.  And 
the  company  now  says:  "At  the  time  we  took  your  premium 
your  policy  was  void,  although  our  agent  told  you  it  was  not, 
and  induced  you  so  to  believe;  yet  you  cannot  recover  of  us  the 
loss  you  claim,  and  you  cannot  be  heard  to  state  in  evidence 
what  our  agent  said,  as  that  would  be  to  vary  the  terms  of  a 
written  contract  by  parol  testimony."  This,  we  think,  the 
company  is  estopped  from  doing:  Woodruff  v.  Imperial  Fire 
Ins.  Co.  etc.,  83  N.  Y.  140,  and  cases  cited. 

The  delivery  of  the  contract  and  a  breach  of  its  condition 
were  concurrent  acts,  if  the  defendant's  theory  of  the  case  be 


March,  1887.]    Pierce  v.  German  Savings  etc.  Society.     45 

correct;  and  at  the  moment  the  contract  was  entered  into,  it 
was  void,  although  the  party  effecting  the  policy  on  his  goods 
paid  then  and  there  the  premium,  and  was  made  by  the  agent 
to  believe  that  the  policy  was  valid,  and  the  petroleum-oil 
clause  waived.  The  defendant's  contention  is  without  force. 
In  the  language  of  a  distinguished  judge,  "  we  would  scarce 
expect  two  parties  to  go  through  so  senseless  an  act "  as  is 
claimed  to  have  been  done  by  the  defendant,  "if  the  facts 
were  known  to  each  at  the  time;  but  would  rather  conclude 
that  they  had  by  words  or  act  agreed  that  the  condition  should 
not  be  considered  as  binding":  Van  Schoichv.  Niagara  Fire 
Ins.  Co.,  68  N.  Y.  436. 

We  are  of  opinion  that  the  evidence  objected  to  was  prop- 
erly allowed  to  go  to  the  jury;  that  their  verdict  was  in  accord- 
ance with  the  facts  in  evidence,  and  the  charge  of  the  court, 
which  last  was  not  erroneous;  that  no  prejudicial  error  is 
shown  by  the  record;  and  that  the  judgment  should  bo 
affirmed. 

Seaels,  C,  and  Belcher,  C.  C,  concurred. 

The  CoDRT.  For  the  reasons  given  in  the  foregoing  opinion, 
the  judgment  is  affirmed. 

Hearing  in  bank  denied. 

Insurance  —  Wattek  of  Conditions  —  What  Agents  have  AuTHORnr 
TO  Make:  Cmnba  v.  Hannibal  Sav.  Co.,  43  Mo.  148;  97  Am.  Dec.  383;  Sheldon 
T.  Atlantic  F.  <k  M.  Ins.  Co.,  84  Id.  213,  and  note;  Keeler  v.  Niagara  F.  Ins. 
Co.,  84  Id.  714;  Viele  v.  Oemiania  Ins.  Co.,  96  Id.  83;  Pino  v.  Merdutnta'  Mu- 
tual Ins.  Co.,  92  Id.  529;  Murjphy  v.  South.  L.  I.  Co.,  27  Am.  Rep.  761;  SiolU 
V.  Etna  F.  <fe  M.  I.  Co.,  27  Id.  593,  and  note. 


Pierce  v.  German  Savings  and  Loan  Society. 

r72  California,  180.] 
Nuisance.  —  Purchaser  of  reversionary  interest  in  real  estate  upon  which  a 
nuisance  exists,  and  of  which  he  has  full  knowledge,  and  who  thereafter 
receives  the  rents  thereof  from  the  tenant  in  possession,  is  answerable 
for  damages  arising  from  such  nuisance  subsequent  to  his  purchase. 

Jarhoe^  Harrison,  and  Goodfellow,  for  the  appellant. 

E.  F.  Swortfiguery  George  A.  Wentworthy  and  Lloyd  Baldwiny 
for  the  respondent. 


46  Pierce  v.  German  Savings  etc.  Society.         [Cal. 

By  Court,  Searls,  C.  This  action  is  brought  to  recover 
damages  claimed  to  have  been  sustained  from  a  nuisance 
maintained  upon  the  premises  of  the  defendant  adjoining  thoso 
of  the  plaintiff. 

The  cause  was  tried  by  a  jury,  and  a  verdict  rendered  in 
favor  of  the  plaintiff  for  $1,050,  for  which  sum  judgment  was 
entered.  Defendant  appeals  from  the  judgment,  and  from  an 
order  denying  a  new  trial. 

The  facts  shown  by  the  evidence  are,  that  the  plaintiff  and 
the  defendant  are  the  owners  of  contiguous  lots  of  land  on 
Montgomery  Street  in  San  Francisco,  separated  by  a  party- 
wall;  that  the  plaintiff  has  been  the  owner  of  his  lot  of  land 
for  upward  of  twenty  years,  and  that  the  defendant  has  been 
the  owner  of  the  adjacent  lot  of  land  since  August  3,  1882; 
that  upon  the  premises  of  the  defendant  there  has  been  main- 
tained a  steam-bathing  establishment  for  ten  or  twelve  years; 
and  that  by  the  manner  in  which  the  said  bathing  establish- 
ment had  been  maintained,  the  plaintiff  had  sustained  dam- 
age. 

It  also  appeared  that  the  said  steam-bathing  establishment 
was  placed  there  by  the  former  owner  of  the  premises,  and 
during  the  period  of  the  alleged  nuisance  and  damage  was 
maintained  by  one  Justin  Gates,  who  was  in  possession  under 
a  lease  from  August  Alers,  the  owner  of  the  said  premises  at 
the  time  of  making  said  lease. 

Gates  had  been  in  possession  of  the  premises,  and  had 
maintainted  the  steam-bathing  establishment,  since  January 
1,  1880.  He  had  taken  a  new  lease  from  Alers,  January  11, 
1882,  for  the  term  of  two  years,  and  had  remained  in  possession 
under  that  lease  until  after  the  commencement  of  this  action. 

While  Gates  was  so. in  possession  of  the  premises  under  this 
lease,  Alers,  on  the  3d  of  August,  1882,  conveyed  the  premises 
to  the  defendant,  and  after  that  date  Gates  attorned  to  the  de- 
fendant, and  paid  it  the  rent  provided  for  in  the  lease.  In  the 
summer  of  1883  the  premises  were  repaired  by  the  defendant, 
and  since  then  no  damage  has  been  sustained. 

It  would  seem  that  the  injury  complained  of  commenced  as 
early  as  1881,  and  in  January  or  February  of  1882  plaintiff 
notified  August  Alers  of  the  fact;  that  Alers  then  claimed  to 
have  nothing  to  do  with  the  property,  and  referred  plaintiff  to 
the  defendant  as  the  owner.  Defendant  held  a  mortgage  upon 
the  property,  but  did  not  become  the  owner  thereof  until 
August  3,  1882,  as  before  stated. 


March,  1887.]    Pierce  v.  German  Savings  etc.  Society.     47 

Prior  to  and  at  the  time  of  becoming  the  owner  of  the  prop- 
erty, defendant  had  full  notice  of  the  existence  of  the  alleged 
nuisance. 

Section  3483  of  the  Civil  Code  provides  that  "  every  succes- 
eive  owner  of  property  who  neglects  to  abate  a  continuing  nui- 
sance upon  or  in  the  use  of  such  property,  created  by  a  former 
owner,  is  liable  therefor  in  the  same  manner  as  the  one  who 
first  created  it." 

Addison,  in  his  work  on  torts,  states  the  rule  as  applicable 
to  the  facts  of  this  case  thus:  — 

"  If  a  nuisance  be  created  on  the  premises,  and  a  man  pur- 
chase the  premises  with  the  nuisance  upon  them,  though 
there  be  a  demise  for  a  term  at  the  time  of  the  purchase  so 
that  the  purchaser  has  no  opportunity  of  removing  the  nui- 
sance, yet  by  purchasing  the  reversion  with  the  existing  nui- 
eance  he  makes  himself  liable  for  the  continuance  of  the 
nuisance." 

The  doctrine  thus  enunciated  is  taken  from  the  opinion  of 
Littledale,  J.,  in  Rex  v.  Pedly,  1  Ad.  &  E.  827,  and  the  learned 
judge  proceeds  to  say:  "  But  if,  after  the  reversion  is  pur- 
chased, the  nuisance  be  created  by  the  occupier,  the  rever- 
sioner incurs  no  liability;  yet,  in  such  a  case,  if  there  were 
only  a  tenancy  from  year  to  year,  or  any  short  period,  and 
the  landlord  desired  to  renew  the  tenancy  after  the  tenant  had 
erected  the  nuisance,  that  would  make  the  landlord  liable. 
He  is  not  to  let  the  land  with  the  nuisance  upon  it." 

This  limitation  of  the  liability  of  the  landlord,  in  cases 
where  he  has  no  right  of  entry  to  abate  a  nuisance  created  by 
the  tenant  after  the  demise,  comports  with  justice.  On  the 
other  hand,  the  landlord  who  demises  premises  with  a  nui- 
sance existing  thereon  is  a  consenting  party  thereto. 

In  the  present  case,  the  former  owner  of  the  premises  cre- 
ated the  nuisance,  and  demised  the  same  with  such  nuisance 
upon  them  to  Dr.  Gates. 

Thereafter  defendant,  with  full  knowledge  of  the  nuisance 
and  of  the  tenancy,  purchased  the  reversion,  and  received  the 
rent  from  the  tenant,  who  attorned  to  it,  and  during  this  state 
of  things  plaintiff  sustained  the  damage  for  which  he  had 
verdict  and  judgment. 

He  who,  with  full  knowledge  of  the  existence  of  a  nuisance 
upon  real  estate,  for  which  the  owner  would  be  liable,  pur- 
chases the  reversionary  interest  in  such  real  estate,  and 
receives  the   rents   thereof    from   the   tenant  in   possession, 


48  DoRE  V.  Dougherty  [Ca!. 

thereby  voluntarily  assumes  the  responsibilty  of  such  nui- 
sance, and  becomes  liable  for  the  damages  sustained  in  con- 
eequence  thereof,  subsequent  to  his  purchase. 

The  instructions  of  the  court  below  were  in  consonance 
with  this  theory,  and  the  judgment  and  order  appealed  from 
should  be  affirmed 

Belcher,  C.  C,  and  Foote,  C,  concurred. 

The  Court.  For  the  reasons  given  iu  the  foregoing  opinion, 
the  judgment  and  order  are  affirmed. 

Hearing  in  bank  denied 


NuiSANCB.  —  Liability  of  lessor  of  premises  is  considered  in  note  to  City  qf 
Lotoell  V.  Spaulditig,  50  Am.  Dec.  776-783;  see  also  Kalis  v.  ShaUuck,  58  Am. 
Rep.  568. 

PUKCHASEB  OF  PKOPERTr,  WHEN  ANSWERABLE  FOR  CONTINaANCE  OF  PbB- 

KXISTINO  Nuisance:  Crommelin  v.  Cox,  68  Am.  Dec.  121;  Pilhburyv.  Moort, 
69  Id.  91;  Johnson  v.  Lewis,  33  Id.  405,  and  note;  Pierson  v.  Olean,  25  Id. 
497;  see  also  note  to  Plumtr  v.  Harper,  14  Id.  338-341. 

Liability  op  Erector  of  Nuisance,  Continuance  of,  after  He  CJon- 
VEYs  Property  on  Which  It  is  Located:  Plumer  v.  Harper,  14  Am.  Dec 
833,  and  note. 


DoRE  V,  Dougherty. 

[72  Califoenia,  232.] 

Judgment  Bases  on  Alias  Summons  issued  without  any  return  of  the 
original,  and  which  imperfectly  states  the  nature  of  the  cause  of  action 
and  fails  to  notify  the  defendant  to  appear  and  answer  at  the  office  of 
the  justice,  is  not  void. 

Judgment  is  not  Sxtbject  to  Levy  and  Sale  under  Execution. 

Judgment  Debtor  may  be  Garnished  by  delivering  to  him  a  copy  of  the 
writ  of  execution,  with  a  notice  in  writing  stating  that  all  his  right, 
title,  and  interest  in  such  judgment,  and  all  moneys,  goods,  credits,  and 
effects  due  or  owing  by  him  to  the  judgment  creditor  are  levied  upon. 

Appeal  will  not  be  Dismissed  because  statement  on  motion  for  a  new 
trial  was  not  served  on  certain  parties  to  the  action  not  interested  in  the 
appeal. 

Action  to  determine  who  is  entitled  to  receive  certain 
moneys,  being  the  amount  of  a  judgment  and  costs.  One 
of  the  defendants.  Miller,  had  attempted  to  obtain  title  to  the 
judgment  under  proceedings  taken  by  him  under  a  judgment 
in  his  favor  against  George  Dougherty,  the  judgment  creditor. 
Miller's  judgment  was  objected  to  because  rendered  by  de- 
fault in  a  justice's  court,  and  based  upon  the  service  of  an 


April,  1887.]  Dore  v.  Dougherty.  49 

alias  summons,  which  was  defective  in  the  matters  pointed 
out  in  the  first  subdivision  of  the  syllabus.  The  other  facts 
are  stated  in  the  opinion. 

/.  M.  and  Charles  E.  Nougues^  for  the  appellant. 

J.  C.  Bates,  for  the  respondent. 

By  Court,  Temple,  J.  August  3,  1880,  George  Dougherty, 
one  of  the  defendants,  recovered  judgment  against  the  present 
plaintiff  for  $2,186,  and  costs.  On  the  same  day  Dougherty 
assigned  the  judgment  to  his  son,  John  Dougherty.  Septem- 
ber 3d,  Dore  appealed  to  the  supreme  court  from  the  judg- 
ment. The  judgment  was  affirmed  here  February  16,  1883: 
Dougherty  v.  Dore,  63  Cal.  170.  September  4,  1880,  while  the 
appeal  was  pending,  defendant  Miller  caused  a  levy  to  be 
made  on  the  judgment  by  virtue  of  an  execution  from  the 
justice's  court  of  San  Francisco,  upon  a  judgment  against 
George  Dougherty  in  favor  of  Miller.  The  attempted  levy 
was  by  the  sheriff,  who  delivered  to  and  left  with  Maurice 
Dore  a  copy  of  the  writ,  with  a  notice  in  writing  that  such 
property,  to  wit, — "  all  the  right,  title,  and  interest  in  and  to 
a  certain  judgment  obtained  in  the  superior  court,  department 
5,  of  the  city  and  county  of  San  Francisco,  in  which  George 
Dougherty  is  plaintiff,  and  Maurice  Dore  defendant,  judgment 
having  been  rendered  on  the  ninth  day  of  August,  1880,  against 
said  Maurice  Dore  for  the  sum  of  $2,186,  and  costs  ";  also  no- 
tifying Dore  that  he  levied  upon  all  moneys,  goods,  credits, 
effects,  debts  due  or  owing,  or  in  his  possession,  or  under  his 
control;  and  requesting  him  not  to  pay  or  transfer  the  same  to 
any  one  save  said  officer.  September  27, 1880,  the  sheriff  pro- 
ceeded to  sell  all  the  right,  title,  and  interest  of  George  Dough- 
erty in  the  judgment  to  the  defendant  Miller  for  the  sum  of 
twenty  dollars,  which  was  credited  upon  the  execution  and 
judgment  in  favor  of  Miller  against  said  Dougherty.  This  ac- 
tion was  brought  by  Dore  under  section  386,  Code  of  Civil  Pro- 
cedure, to  have  the  court  determine  who  was  entitled  to  receive 
the  money,  the  amount  of  the  judgment  and  costs,  $2,850,  being 
deposited  in  court.  The  court  awarded  the  money  to  John 
Dougherty,  the  assignee  of  George  Dougherty,  and  Miller  ap- 
peals from  the  judgment,  or  a  portion  of  it. 

The  superior  court  refused  to  allow  Miller  to  introduce  proof 
for  the  purpose  of  showing  that  the  assignment  to  John  Dough- 
erty was  fraudulent,  on  the  ground  that  Miller  had  acquired 

▲if.  ST.  Rkp.,  Vol.  I. -4 


50  DoRE  V.  Dougherty.  [Cal. 

no  title  to  the  judgment  against  Dore,  and  had  no  such  stand- 
ing as  would  enable  him  to  attack  the  assignment.  This 
position  is  sought  to  be  maintained  on  the  ground,  first,  the 
judgment  rendered  in  justice's  court  is  void;  but  in  this  we 
do  not  agree  with  respondent's  counsel.  The  summons  was 
BuflBcient,  at  least  as  against  a  collateral  attack,  under  the  rule 
laid  down  in  Keyhers  v.  McComher,  67  Cal.  395.  Whether  the 
alias  summons  was  regularly  issued  or  not  is  not  a  jurisdic- 
tional question. 

In  the  next  place,  it  is  claimed  that  the  judgment  was  not 
subject  to  levy  and  sale  under  execution.  We  think  this  point 
well  taken.  It  was  expressly  so  held  in  McBride  v.  Fallon,  65 
Cal.  301.  Much  may  be  said  on  both  sides  of  this  question, 
and  it  has  been  differently  decided  in  different  states.  As  it 
has  been  decided  in  the  above  case,  we  see  no  reason  for  re- 
opening the  discussion.  It  is  claimed  that  the  case  of  Mc- 
Bride V.  Fallon,  supra,  only  holds  that  the  sale  could  not  be 
made  as  it  was  attempted  in  that  case,  and  that  the  mode  of 
levy  there  was  different  from  the  mode  pursued  here.  But 
that  ruling  is  expressly  placed  upon  the  ground  that  the  judg- 
ment is  but  the  evidence  of  a  debt,  and  the  statute  has  made 
no  provision  for  attaching  or  levying  upon  evidences  of  debt; 
but  that  it  is  the  debt  itself,  and  not  the  evidence  of  it,  which 
may  be  levied  upon  by  the  writ  of  attachment,  or  on  execu- 
tion in  like  manner  as  upon  writs  of  attachment.  And  to 
confirm  this  view,  the  court  alludes  to  the  case  of  Davis  v. 
Mitchell,  34  Cal.  81,  where  it  was  held  that  a  promissory  note 
was  the  subject  of  levy  and  sale,  when  the  sheriff  could  get 
possession  of  it,  and  could  deliver  it  to  the  purchaser,  and  say 
they  could  not  assent  to  the  doctrine  of  that  case.  Of  course 
it  is  not  denied  that  a  judgment  is  property,  or  that  it  can  be 
the  subject  of  assignment.  The  ruling  is  based  entirely  upon 
the  statute.  And  it  seems  to  us  that  it  necessarily  follows 
that  the  debt  was  by  the  proceeding  duly  levied  upon.  Ser- 
vice of  the  writ  and  notice  constituted  what  is  usually  called 
the  process  of  garnishment. 

It  is  claimed  that  the  garnishment  is  not  sufl&ciently  pleaded 
by  defendant  Miller.  It  is  true.  Miller  claims  to  have  bought 
the  judgment;  but  in  showing  his  title  to  the  judgment  he 
adopts  by  express  reference  the  allegations  in  the  complaint 
which  show  the  garnishment,  and  adds  the  other  facts  which 
show  the  debt  itself  was  duly  levied  upon.  This  put  Miller 
in  the  attitude  of  a  creditor,  and  gave  him  the  right  to  attack 


April,  1887.]  Sullivan  v.  Royer.  61 

the  assignment  for  fraud,  and  the  ruling  denying  him  t^at 
right  was  error.  The  other  defendants  were  not  interested  in 
this  appeal,  and  the  motion  to  dismiss,  on  the  ground  that  it 
does  not  appear  that  the  statement  was  served  on  all  the  ad- 
verse parties,  must  be  denied. 

Judgment  reversed,  so  far  as  the  same  affects  defendant 
Miller,  and  a  new  trial  ordered  as  to  the  claim  of  said  de- 
fendant. 

Paterson  and  McKinstry,  JJ.,  concurred. 

Hearing  in  bank  denied. 

Defects  in  Summons,  or  in  its  Service,  must  generally  be  urged  by 
motion  or  proceeding  for  the  vacation  of  the  writ,  or  of  its  service.  Other- 
wise, the  irregularity  is  waived,  and  can  aid  the  defendant  in  any  attempt  to 
collaterally  avoid  a  judgment  based  upon  such  writ:  Freeman  on  Judgments, 
sec.  126;  Keybers  v.  McComber,  67  CaL  395;  BalUnger  v.  Tarbell,  85  Am.  Dec. 
627,  and  cases  cited  in  note. 

Judgment,  whether  Subject  to  Levy  and  Sale  under  EIzecution: 
Oibom  v.  Cloud,  92  Am.  Dec.  413,  and  note  416. 

Judgment  Entered  before  Expiration  of  Time  Allowed  Defendant 
to  answer  was  held  void  in  Johnson  v.  Baker,  87  Am.  Dec.  293;  Ltdford  v. 
Wdier,  7  lU.  App.  91. 


Sullivan  v,  Koyer. 

r72  Calipobkia,  248.] 
Jury  Trial.  —  Counsel  have  no  right  to  read  law  books,  nor  to  argue  ques* 

tions  of  law  to  the  jury. 
Abatement  of  Nuisance  is  accomplished  in  equity  by  an  injunction,  adapted 

to  the  facts  of  the  case. 
Prater  of  Complaint  for  the  abatement  of  a  nuisance  warrants  a  decree  for 

an  injunction  against  the  continuance  of  such  nuisance. 
Verdict  of  Jury  in  Suit  in  Equity  is  advisory  merely. 
Nuisance.  —  The  issuing  of  soot  from  a  smoke-stack  may  be  enjoined,  where 

it  constitutes  a  disagreeable  nuisance  in  a  populous  city. 
License  to  Maintain  Nuisance,  if  granted  by  a  board  of  supervisors,  will 

not  be  permitted  to  substantially  impair  the  rights  of  property  hold^v. 

Suit  in  equity  to  abate  a  nuisance,  consisting  of  soot  issuing 
from  a  smoke-stack  on  the  premises  of  the  defendant  in  the 
city  of  San  Francisco.     Decree  for  the  plaintiff. 

M.  A.  Wheaton,  for  the  appellant. 

Preston  and  Allen,  and  J,  M.  Allen,  for  the  respondent. 

By  Court,  Foote,  C.  This  is  an  action  in  equity,  instituted 
for  the  purpose  of  enjoining  and  abating  certain  nuisances, 


62  Sullivan  v.  Roteb.  [CaL 

and  for  the  recovery  of  damages  resulting  therefrom.  The 
cause  was  tried  before  a  jury,  who  heard  all  the  evidence  given 
therein,  a  verdict  was  by  them  rendered  for  one  hundred  dol- 
lars damages  against  the  defendant,  "  and  that  he  be  ordered 
by  the  court  to  abate  the  nuisances  complained  of  by  the  plain- 
tiff." Thereupon  the  court  made  and  filed  written  findings 
of  fact  upon  all  the  material  issues  raised  by  the  pleadings, 
and  rendered  its  judgment,  enjoining  the  defendant  from  con- 
tinuing the  nuisances  complained  of,  ordering  that  the  same 
be  abated,  and  that  the  plaintiff  recover  the  sum  of  one  hun- 
dred dollars  damages,  and  costs.  A  new  trial  was  moved  for 
by  the  defendant,  and  denied,  and  from  the  judgment  and 
order  made  therein  this  appeal  is  prosecuted. 

Counsel  for  the  defendant  contends  most  earnestly,  upon 
several  grounds,  that  the  judgment  and  order  should  be  re- 
versed, but  none  of  them  appear  to  us  to  be  tenable. 

There  was  no  error  in  the  refusal  of  the  court  to  allow  the 
defendant's  counsel  to  read  law  books,  or  to  make  an  argu- 
ment on  the  law  of  the  case,  or  to  state  what  he  claimed  to 
be  law,  to  the  jury:  People  v.  Anderson,  44  Cal.  70;  Proffatt  on 
Jury  Trials,  sec.  253. 

As  we  have  seen,  this  was  an  action  in  equity:  People  v. 
Moore,  29  Cal.  428;  Courtwright  v.  B.  R.  &  A.  W.  &  M.  Co., 
30  Id.  576,  577.  An  abatement  of  a  nuisance  is  accomplished 
by  a  court  of  equity  by  means  of  an  injunction  proper  and 
suitable  to  the  facts  of  each  case:  Wood  on  Nuisances,  sees. 
777-794. 

The  complaint  alleged  and  the  court  found  that  a  nuisance 
existed  and  was  continuous;  the  answer  denied  all  the  mate- 
rial allegations  of  the  complaint.  While  it  is  true  that  the 
prayer  of  the  pleading  above  referred  to  did  not  expressly  ask 
for  the  issuance  of  an  injunction,  yet  it  did  ask  "  that  said 
nuisance  be  abated."  The  relief  granted  was  consistent  with 
the  case  made  by  the  complaint,  and  embraced  within  the 
issues  made  by  the  pleadings,  and  was  therefore  entirely 
proper:  Code  Civ.  Proc,  sec.  580. 

There  is  a  substantial  conflict  in  the  evidence  as  to  whether 
the  plaintiff  was,  at  the  time  of  the  institution  of  the  action, 
employed  by  the  defendant  to  remove  the  "  pile  of  hair  and 
flesh"  that  constituted  a  part  of  the  nuisance  complained  of. 

The  defendant  complains  that  the  court  instructed  the  jury 
that  damages  could  be  recovered  against  him  after  the  com- 
mencement of  the  action-     It  apnears,  however,  that  the  plain- 


April,  1887.]  Sullivan  v.  Royer.  53 

tiff  waived  all  damages  for  anything  that  had  occurred  after 
the  filing  of  the  complaint,  and  the  case  being  one  in  equity, 
the  verdict  of  the  jury  was  merely  advisory  to  the  court: 
Sweetser  v.  Dobbins,  65  Cal.  529. 

The  defendant's  counsel  makes  a  very  strenuous  argument 
that  in  effect  the  verdict,  judgment,  and  findings,  as  he  claims, 
most  improperly  pronounced  the  smoke-stack  of  the  defend- 
ant to  be  a  nuisance. 

The  language  of  the  decree  or  judgment  upon  that  subject 
is  as  follows:  "  It  is  adjudged  and  decreed  that  said  defend- 
ant is  perpetually  enjoined  from  allowing  soot  to  issue  from 
the  smoke-stack  on  the  premises,"  etc. 

The  findings  show  that  the  issuance  of  this  soot  from  the 
smoke-stack  above  mentioned  was  a  nuisance  of  a  most  dis- 
agreeable character  to  the  plaintiff  and  his  family. 

We  are  not  informed  from  the  record  but  what  this  smoke- 
stack might  have  been  used  in  such  a  way,  both  readily  and 
easily,  as  that  soot  would  not  have  issued  therefrom.  But  be 
that  as  it  may,  it  is  said  by  this  court  in  the  case  of  Tuebner 
V.  California  Street  R.  R.  Co.,  66  Cal.  174:  "The  keeping  of  a 
hotel  or  a  restaurant  is  a  lawful  and  very  necessary  business, 
....  yet  it  could  not  be  held. that  a  person  carrying  on  such 
business,  or  any  requiring  a  large  consumption  of  fuel,  could 
erect  his  chimney  to  a  height  that  would  discharge  the  smoke 
and  soot  into  his  neighbor's  windows.  It  is  true,  as  argued 
by  appellant,  that  persons  preferring  to  live  in  the  city  rather 
than  the  country  must  accept  many  inconveniences,  —  prob- 
ably all  that  flow  naturally  and  necessarily  from  the  concen- 
tration of  populations;  but  that  doctrine  should  not  be  carried 
too  far.  The  law  looks  to  a  medium  course  to  be  pursued  by 
each  for  the  mutual  benefit  of  all."  Tested  by  this  rule,  we 
do  not  see  why  the  plaintiff  should  not  be  restrained  from  so 
using  his  smoke-stack  as  that  the  soot  issuing  therefrom  shall 
be  prevented  from  being  a  disturbance,  annoyance,  and  source 
of  positive  injury  to  the  defendant  and  his  property. 

Nor  could  the  board  of  supervisors  of  the  city  and  county 
of  San  Francisco  grant  a  license  to  the  defendant  which  would 
permit  him  materially  to  impair  the  plaintiff's  property  rights. 
They  could  and  did  grant  the  defendant  a  license  to  erect 
and  maintain  his  steam-engine,  but  they  neither  could  nor  did 
license  him  thereby  to  create  a  nuisance:  Tuebner  v.  California 
Street  R.  R.  Co.,  supra. 

Upon  the  whole  case,  the  record  of  which  as  well  as  briefs 


^  Sullivan  v.  Royer.  [Cal. 

of  counsel  and  autnorities  there  cited  we  have  carefully  ex- 
amined, we  are  of  opinion  that  the  judgment  and  order  should 
be  affirmed. 

Searls,  C,  and  Belcher,  C.  C,  concurred. 

The  Court.    For  the  reasons  given  in  the  foregoing  opinion, 
the  judgment  and  order  are  affirmed. 


JtmY  Trial. — Where  the  distinct  provinces  of  tbe  court  and  of  the  jury 
are  recognized,  and  the  former  is  held  to  be  the  exclusive  judge  of  the  law, 
u  the  jury  are  of  the  facts,  it  is  clearly  improper  for  counsel  to  argue  ques- 
tions of  law  to  the  jury,  or  to  read  law  books  or  extracts  therefrom  in  the 
course  of  their  argument.  In  the  first  place,  such  a  course  savors  of  disre- 
spect to  the  judge  on  the  bench,  as  it  suggests  to  the  jury  that  there  are 
other  exponents  of  the  law  to  whom  they  may  look  in  making  their  decision, 
and  invites  them  to  accept  the  law  as  read  by  the  attorney,  rather  than  aa 
set  forth  in  the  instructions  which  the  court  is  to  give  to  them  before  they 
retire  for  deliberation.  In  the  next  place,  whenever  the  jury  is  to  be  influ- 
enced by  something  which  is  stated  to  them  and  in  their  presence,  as  law 
applicable  to  the  case,  it  ought  to  be  in  the  form  of  instructions  to  which  the 
opposing  party  may,  if  he  so  wish,  reserve  an  exception.  Otherwise,  he  is 
without  redress,  if  that  which  is  stated  aa  law  is,  m  truth,  not  the  law  at 
all;  or  if,  though  being  sound  law  when  properly  applied,  it  is  entirely  inap- 
plicable to  the  case  under  consideration.  Besides,  the  reading  of  law  books 
in  the  course  of  an  argument  must  tend  to  confuse  as  well  as  mislead  the 
jury.  It  distracts  their  attention  from  the  facts  of  the  case.  The  reading 
of  such  books  may  be  permitted  in  the  discretion  of  the  court,  if  pertinent, 
by  way  of  illustration;  but  if  its  apparent  object  is  "to  induce  the  jury  to 
disregard  the  instructions,  or  to  take  the  law  of  the  case  from  the  books 
rather  than  from  the  court, "  it  should  be  checked  by  the  judge,  unless  per- 
haps in  those  cases  where  the  jurors  are  judges  of  the  law  as  well  as  of  the 
facts:  Proffatt  on  Jury  Trials,  sec.  253;  People  v.  Anderson,  44  Cal.  70. 

Nuisances.  —  Businesses,  though  lawful  in  their  nature  and  of  great 
public  or  private  benefit,  must  be  so  conducted  as  not  to  constitute  nuisances. 
Otherwise,  they  will  be  enjoined.  This  rule  was  applied  to  lead  smelting- 
works,  in  Appeal  of  (lie  Pennsylvania  Lead  Co.,  42  Am.  Rep.  534;  to  slaughter- 
bouses:  Pruner  v.  Pendleton,  40  Id.  738;  Minhe  v.  Hofeman,  29  Id.  63;  to  the 
operation  of  a  steam-engine:  Dettman  v.  Repp,  33  Id.  325;  McKeon  v.  Lee,  10 
Id.  659;  to  rolling-mills  emitting  smoke  and  cinders:  Wessrni  v.  Washburn  I, 
Co.,  90  Am.  Dec.  181;  to  a  blacksmith's  shop:  Fancher  v.  Grass,  60  Iowa, 
505;  Norcross  v.  Thorns,  81  Am.  Dec.  588;  to  a  powder-magazine:  Emory  v. 
Hazard  Powder  Co.,  53  Am.  Rep.  730;  to  potteries  emitting  dense  volumes 
of  soot  and  smoke:  Ross  v.  BidUr,  97  Am.  Dec  654.  and  note.  See  note  to 
Rome  v.  Martin,  51  Am.  Rep.  467-475. 


April,  1887.]  Babby  v.  Terkildsen.  55 

Barry  v.  Terkildsen. 

172  California,  254.] 

Plajntut  is  not  Guilty  of  Contribittort  Negligexcb,  because,  assnming 
a  sidewalk  in  a  populous  city  to  be  safe,  she  permitted  her  attention  to 
be  momentarily  attracted  in  another  direction,  and  fell  into  a  hole  in 
such  sidewalk,  from  which  the  covering  had  been  removed. 

Fact  that  Act  of  Third  Persou  may  have  Contribcted  to  the  final 
catastrophe  will  not  exonerate  a  defendant  sued  for  injuries  resulting 
from  an  act  which  is  unlawful,  or  is  so  hazardous  as  to  be  in  the  nature 
of  a  nuisance  on  account  of  the  occasion  for  accident  and  injury  which 
it  continuously  presents  to  innocent  persons. 

Sidewalk.  —  One  who  maintains  a  hole  in  a  sidewalk  in  front  of  his  prem- 
ises  in  a  populous  city,  over  which  is  a  movable  trap-door,  is  answerable 
to  a  person  who  is  injured  by  falling  through  such  hole  at  a  time  when 
it  was  open  and  unguarded,  though  it  is  not  shown  by  whom  the  door 
was  removed  and  the  hole  left  open  and  unguarded. 

Right  to  Keep  Openings  in  Sidewalks  in  front  of  one's  premises,  if  it 
exists  at  all,  must  come  from  legislative  declaration,  municipal  license, 
or  general  usage. 

Action  for  damages  for  injuries  suffered  from  falling 
through  a  hole  in  a  sidewalk.    Judgment  for  plaintiflF. 

F.  M.  Husted,  for  the  appellant. 

/.  D.  Sullivan  and  Horace  O.  Piatt,  for  the  respondent. 

By  Court,  McFarland,  J.  Plaintiff,  a  girl  about  nineteen 
years  old,  started  somewhat  in  a  hurry  from  her  father's 
house,  about  nine  o'clock  in  the  morning  of  October  11,  1880, 
to  go  to  school.  Appellant  owned  the  adjoining  premises, 
and  in  the  sidewalk  in  front  of  said  premises  there  was  a  hole 
covered  by  a  wooden  trap-door,  which  appellant  used  for  his 
private  convenience.  This  hole  was  only  a  few  feet  from  the 
entrance  to  the  residence  of  plaintiff's  father.  On  the  morn- 
ing above  referred  to,  this  hole  was  opened,  and  entirely  un- 
guarded and  unprotected.  As  plaintiff  went  out  of  the  house, 
her  attention  was  attracted  for  a  moment  by  some  children 
playing  on  the  street,  and  not  noticing  the  hole,  after  taking 
a  couple  of  ^teps  she  fell  headlong  into  it.  The  hole  was 
quite  deep,  and  plaintiff  was  very  seriously  injured  by  the 
fall.  She  had  been  accustomed  to  travel  over  this  sidewalk 
daily  on  her  way  to  and  from  school,  and  never  knew  before 
that  the  hole  was  there.  The  premises  are  on  Post  Street, — 
a  populous  street  of  the  city  of  San  Francisco.  The  evidence 
did  not  show  who  had  removed  the  trap-door  from  the  top  of 
the  hole.     The  jury  found  a  verdict  in  favor  of  plaintiff  for 


56  Barey  v.  Terkildsen.  [Cal. 

three  tliousand  dollars,  and  defendant  appeals  from  the  judg- 
ment, and  from  an  order  denying  a  new  trial. 

Appellant  makes  many  of  the  points  which  are  usually 
raised  in  actions  for  damages  of  the  class  to  which  the  case 
at  bar  belongs. 

In  our  opinion,  there  is  nothing  in  the  point  that  respond- 
ent was  guilty  of  contributory  negligence.  A  sidewalk  of  a 
street  in  a  city  not  near  a  crossing  may  be  taken  by  one 
passing  over  it  to  be  a  safe  and  not  a  dangerous  place.  In 
this  case,  the  respondent  had  a  right  to  presume  that  the  side- 
walk was  in  the  same  condition  in  which  she  had  always 
found  it;  and  the  fact  that  her  attention  was  momentarily 
attracted  in  another  direction — a  thing  of  the  most  common 
occurrence  to  travelers  along  a  street  —  falls  far  short  of  that 
contributory  negligence  which  in  law  defeats  an  action  for 
damages. 

Most  of  the  other  points  made  by  appellant  in  various 
forms,  when  grouped  together,  present  this  proposition  or 
theory:  that  as  respondent  failed  to  show  that  appellant,  or 
any  one  of  his  employees  or  servants,  removed  the  trap-door 
from  the  hole,  and  did  not  negative  the  theory  that  a  stranger 
might  have  removed  it,  therefore  there  is  a  want  of  proof  of 
that  negligence  which  is  the  gist  of  an  action  for  personal 
damages. 

To  this  proposition  there  is  a  multitude  of  authorities,  more 
or  less  applicable;  and  they  are  widely  di  vergent.  We  think, 
however,  that  through  the  numerous  cases  upon  the  subject 
may  be  seen  a  distinction  which  is  determinative  of  the  case 
at  bar.  When  a  person  pursues  a  business  or  does  an  act 
perfectly  lawful  in  itself,  and  not  in  its  nature  so  hazardous 
or  so  conducive  to  injury  as  to  be  of  the  character  of  a  nui- 
sance, then  he  can  be  held  liable  for  injuries  to  others  arising 
therefrom  only  when  he  has  been  guilty  of  negligence  in  his 
manner  of  carrying  on  the  business  or  doing  the  act.  But 
when  the  act  is  unlawful,  or  is  in  its  character  so  hazardous 
as  to  be  in  the  nature  of  a  nuisance  on  account  of  the  occa- 
sion for  accident  and  injury  which  it  continuously  presents  to 
innocent  persons,  then  the  party  is  liable,  although  the  agency 
of  a  stranger  may  have  contributed  to  some  extent  to  the  final 
catastrophe.  At  least,  in  such  a  case,  the  injured  party  ought 
not  to  be  compelled  to  show  affirmatively  that  there  was  no 
intervention  of  a  third  person  which  contributed  to  the  re- 
sult. 


April,  1887.]  Barry  v.  Terkildsen.  57 

Whether  or  not  appellant  had  any  lawful  authority  to  main- 
tain the  excavation  and  trap-door  at  all  is  a  somewhat  doubt- 
ful question;  but  the  weight  of  authority  seems  to  be  to  the 
point  that  he  had  not.  There  is  no  evidence  in  the  case  of 
any  custom,  nor  does  it  appear  whether  or  not  appellant  had 
the  fee  to  any  part  of  the  street.  Judge  Dillon,  in  his  work  on 
municipal  corporations,  states  what  seems  to  be  a  fair  sum- 
ming up  of  the  authorities  on  the  subject.  At  section  699, 
speaking  of  the  right  to  make  "  openings  in  sidewalks,"  he 
says:  "  If  the  fee  of  the  street  is  in  the  municipality  in  trust 
for  the  public  uses,  as  it  frequently  is,  it  extends  to  the  whole 
street,  including  the  sidewalk;  and  the  adjoining  lot-owner 
would,  it  seems  clear,  have  no  right,  as  against  the  public, 
or  the  municipality  charged  with  the  control  of  the  streets,  to 

appropriate  them  to  this  use If  the  fee  of  the  street  is 

in  the  adjoining  owner,  as  it  frequently  is,  the  question  as  to 
the  rightfulness  of  such  a  use  of  the  sidewalk  may  not  be  so 
plain;  and  yet  even  in  this  case  the  public  right  must  be  para- 
mount to  individual  interests,  and  the  rights  of  the  public  are 
not  limited  to  a  mere  right  of  way,  but  extend,  as  we  have 
shown,  to  all  beneficial  uses,  as  the  public  good  or  convenience 

may  from  time  to  time  require The  correct  view  would 

seem  to  be  that  all  rights  of  this  character  must  come  from 
legislative  declaration  or  municipal  license,  express  or  implied 
from  general  usage." 

Appellant  showed  no  right  from  legislative  declaration,  mu- 
nicipal license,  or  general  usage. 

But  if  there  be  any  principle  upon  which  there  could  bo 
based  a  right  of  appellant  to  maintain  the  excavation  and 
trap  in  the  absence  of  any  municipal  action  upon  the  subject, 
that  right  would  disappear  before  an  ordinance  of  the  city, 
which  was  introduced  in  evidence  by  respondent.  The  ordi- 
nance was  passed  in  July,  1880,  and  was  a  re-enactment  of  a 
similar  ordinance  passed  in  May,  1866.  The  first  part  of  sec- 
tion G  of  said  ordinance  is  as  follows:  "No  person  shall  con- 
struct, or  cause  or  suffer  to  be  constructed,  under  the  sidewalk 
adjoining  any  premises  belonging  to  him,  or  in  his  possession 
or  under  his  control,  any  area  or  vault,  except  in  conformity 
with  the  following  specifications."  Then  follows  a  large  num- 
ber of  specifications,  which  provide  with  particularity  how  such 
vaults  and  their  coverings  shall  bo  constructed, — no  one  of 
which  does  appellant  show  a  compliance  with.  They  provide 
for  the  use  of  stone,  brick,  and  iron,  and  against  the  use  of 


68  Barry  v.  Terkildsen.  [Cal. 

wood.  In  the  latter  part  of  the  section  it  is  provided  as  fol- 
lows: "  No  aperture  through  the  sidewalk  into  a  vault  shall 
exceed  a  superficial  area  of  twenty-four  square  feet.  Every 
Buch  aperture  shall  be  covered  with  an  iron  cover,  and  shall 
be  securely  closed  when  not  in  actual  use."  It  affirmatively 
appears  that  the  covering  or  trap-door  of  the  vault  of  appellant 
was  wooden,  and  that  a  few  days  before  the  accident  he  had 
employed  a  man  to  repair  it  with  wooden  planks.  It  appears, 
therefore, — 1.  That  appellant  had  no  authority  of  law  to  main- 
tain the  structure;  and  2.  That  its  maintenance  was  in  direct 
violation  of  law. 

Moreover,  an  excavation  in  the  sidewalk  of  a  populous  sticet 
of  a  city,  with  a  movable  cover,  liable  to  be  removed  by  any 
careless  or  mischievous  passer-by,  is  so  dangerous  a  pitfall  aa 
to  be,  in  its  character,  of  the  nature  of  a  nuisance;  and  when 
not  authorized  by  law,  it  would  be  a  hard  rule  to  require  an 
innocent  party  injured  thereby  to  prove  that  the  injury  was 
not  caused  in  part  by  the  act  of  a  third  person.  No  such  rule 
is  applicable  to  the  facts  of  this  case. 

It  appears  that  a  few  days  before  the  accident,  appellant 
employed  a  Mr.  Krone  to  make  a  few  repairs  to  the  house 
situated  on  appellant's  premises,  and  also  to  repair  one  of  the 
planks  on  the  trap-door  in  the  sidewalk, — all  to  cost  six 
dollars. 

There  is  no  evidence  that  any  act  or  negligence  of  Krone 
contributed  to  the  accident;  but  appellant,  assuming,  we  sup- 
pose, that  Krone's  negligence  might  have  so  contributed, 
invokes  the  principle  that  the  owner  of  premises  is  not  respon- 
sible for  the  negligence  of  an  independent  contractor.  But  if 
BUch  a  trivial  contract  could  bring  that  principle  into  action 
in  any  case,  it  would  not,  under  the  views  herein  expressed,  be 
a  defense  in  the  case  at  bar. 

Appellant's  specific  objections  to  the  refusal  of  the  court  to 
grant  a  nonsuit,  and  to  the  giving  and  refusing  of  certain  in- 
structions to  the  jury,  simply  raise,  in  various  forms,  the  ques- 
tions above  discussed.  We  think  that  the  nonsuit  was  properly 
denied,  and  that  the  case  was  correctly  and  fairly  given  to  the 
jury. 

There  was  no  error  in  the  instructions  that  "  plaintiff,  if  en- 
titled to  a  verdict,  is  entitled  to  damages  for  her  pain  and 
Buffering,  both  bodily  and  mental." 

Judgment  and  order  aflSrmed. 


April,  1887.]  Barry  v.  Terkildsen.  59 

Sharpstein  and  Thornton,  JJ.,  concurred. 
Hearing  in  bank  denied. 


Contributory  Negligence  in  Voluntabilt  Passing  over  Street  Known 
TO  BE  Dangerous  bt  Reason  of  Ice  upon  It:  Sdwejler  v.  Sandusky,  31  Am. 
Rep.  533;  City  of  Erie  v.  Magill,  47  Id.  739;  City  of  Quincy  v.  Backer,  25  Id. 
278.  The  fact  that  one's  attention  while  passing  along  a  public  street  is  ar- 
rested by  some  object  of  interest  or  cariosity,  causing  him  to  stop,  or  not  to 
give  attention  to  his  immediate  surroundings,  does  not  present  such  a  case  of 
contributory  neglect  as  to  preclude  his  recovery  for  injuries  received:  Httasey 
V.  Ryan,  54  Id.  772.  For  cases  brought  to  recover  for  injuries  suffered  from 
falling  into  holes  in  streets  or  sidewalks,  see  City  of  Montgomery  v.  Wright, 
47  Id.  422;  Bruker  v.  Toum  cf  Covington,  35  Id.  202.  A  landlord  is  not  an- 
Bwerable  if  the  hole  or  excavation  was  made  by  permission  of  the  city,  cov- 
ered in  a  safe  and  substantial  manner,  and  the  injury  arose  through  the  act 
of  a  third  person,  whereby  the  stone  supporting  the  cover  of  the  hole  wa» 
broken,  of  which  act  the  landlord  had  no  knowledge:  Wolf  v.  Kilpatricl;  54 
Id.  672. 

For  Excavation  Made  bt  City  in  or  near  a  public  highway,  and  left  un- 
guarded, it  is  answerable  for  injuries  sustained  by  a  child,  who,  while  at 
play,  fell  into  such  excavation:  City  of  Indianapolis  v.  Emmelman,  58  Am. 
Rep.  65. 

For  Obstruction  or  Excavation  in  Public  Street,  made  by  the  lot- 
owner,  and  not  licensed  by  the  municipal  authorities,  he  is  answerable,  irre- 
spective of  the  question  of  his  negligence.  ' '  The  public  are  entitled  to  an 
unobstructed  passage  upon  the  streets,  including  the  sidewalks  of  a  city,  but  a 
•tructure  such  as  that  proved  in  this  case  was  an  obstruction.  It  was  suffi- 
cient for  the  plaintiff  to  prove  that  in  passing  along  the  sidewalk  he  was 
injured  by  this  structure,  which  was  appurtenant  to  defendant's  premises  ": 
CUfford  V.  Day,  81  N.  Y.  56. 

Right  of  One  Using  Streets  of  City  as  Play-ground,  as  where  a  child 
was  injured  while  rolling  a  hoop,  or  playing  tag,  to  recover  for  injuries  sus- 
tained from  defects  in  a  street  has  been  questioned,  on  the  ground  that  the 
Qse  was  one  not  contemplated  by  law.  But  it  is  believed  that  the  using  of 
streets  for  purposes  of  play  or  recreation  will  not  defeat  the  recovery  of  an 
injured  person,  unless,  taken  with  other  facts,  it  shows  that  he  was  guilty  of 
contributory  negligence:  City  of  Cldcago  v.  Ke^e,  55  Am.  Rep.  860,  and  note. 

Liability  of  Municipal  Corporation  for  Non-repair  of  Streets:  Se« 
note  to  Brovming  v.  Springfield,  03  Am.  Dec.  350-355,  and  to  Perry  t.  City  q/ 
Worcester,  66  Id.  434-442. 


k 


60  Palmer  v.  Howard.  [Cal. 

Palmee  V.  Howard. 

[72  Caltfoenia,  293.] 

Under  Executobt  Contbact  of  Sale  Resekvino  Tmji  until  Paticint 
is  made,  a  &ona^<fe  purchaser  from  the  vendee  acquires  no  valid  claim  to 
the  property. 

PoLicT  or  Law  la  against  Upholdino  Secret  Liens  and  Charges  to  the 
injury  of  innocent  purchasers  and  encumbrancers  for  value. 

Mortgages.  —  The  provisions  of  the  law  concerning  mortgages  cannot  be 
evaded  by  mere  shuffling  of  words. 

Instrument  is  Mortgage,  no  matter  what  the  parties  may  characterize  it, 
where  it  clearly  appears  therefrom  that  for  all  practical  purposes  the 
ownership  of  the  property  is  intended  to  be  transferred  and  a  lien  for 
the  purchase  price  reserved  to  the  seller. 

Instrument  is  Mortgage,  and  not  Executory  Contract  of  Sale,  where 
it  recites  the  loan  of  certain  articles,  that  if  the  price  set  against  them 
is  paid  they  shall  belong  to  the  borrower,  otherwise  to  the  lender;  that 
notes  or  drafts  given  are  not  to  be  considered  payments  till  paid;  that 
the  borrower  agrees  to  pay  the  prices  named;  that  the  property  is  not  to 
be  removed  from  a  designated  lot  without  the  assent  of  the  lender;  and 
that  if  the  borrower  fail  to  meet  any  of  the  payments,  the  lender  may 
take  the  property  and  dispose  of  it,  rendering  to  the  borrower  all  sur- 
plus after  paying  the  price  agreed  upon,  etc. 

Action  of  claim  and  delivery.    Judgment  for  plaintiffs. 

Levi  Chase,  for  the  appellant. 

W.  J.  Hunsaker^  for  the  respondents. 

By  Court,  Hayne,  C.  The  plaintiff  delivered  to  one  St.  Clair 
and  wife  certain  personal  property,  under  a  writing,  of  which 
the  following  is  a  copy:  — 

"  San  Francisco,  March  26,  1885. 

"D.  Parker  St.  Clair  and  Wife,  San  Diego,  Cal.:  —  Bor- 
rowed and  received  of  Palmer  and  Rey,  405-407  Sansome 
Street,  San  Francisco,  the  following  articles  in  good  order.  If 
the  price  set  against  them  is  paid,  as  per  memorandum  below, 
the  property  is  then  to  belong  to  said  borrower;  otherwise,  it 
remains  the  property  of  Palmer  and  Rey.  Notes  and  drafts, 
or  renewals  of  the  same,  if  given,  are  not  to  be  considered  pay- 
ment until  they  are  paid.  In  the  mean  time  the  borrower  is 
to  keep  the  property  in  good  order,  and  agrees  to  pay  the  price 
as  per  memorandum  below,  keep  the  property  sufficiently  in- 
Bured  for  the  benefit  of  the  said  Palmer  and  Rey,  depositing 
the  policy  of  insurance  with  them,  and  may  use  the  property 
free  from  any  other  charge. 

"  Said  property  is  not  to  be  removed  from  lot  L,  in  block 
thirty-six  (36)  in  the  city  of  San  Diego,  Cal.,  without  the  writ- 


May,  1887.]  Palmer  v.  Howard.  61 

ten  consent  of  Palmer  and  Key.  Should  said  borrower  fail  to 
meet  any  of  the  payments  at  the  time  specified,  or  to  keep  the 
property  satisfactorily  insured  or  in  good  order,  then  Palmer 
and  Rey  may  take  the  said  articles  and  dispose  of  them  to  the 
best  advantage,  rendering  to  said  borrower  all  surplus,  if  any, 
after  paying  the  price  agreed  upon  and  the  expenses  of  removal 
and  sale.'' 

Then  follows  a  list  of  the  articles,  and  a  specification  of  the 
installments  of  the  price,  amounting  in  all  to  $2,295.45. 

The  St.  Clairs  paid  but  one  installment  of  the  price,  and 
did  not  keep  the  property  insured,  but  mortgaged  the  same  to 
the  defendant  for  $925,  and  subsequently  left  for  parts  un- 
known. 

The  question  is  as  to  the  effect  of  the  agreement  quoted. 

It  is  settled  in  this  state  that  even  bona  fide  purchasers 
from  the  person  to  whom  personal  property  is  delivered,  under 
an  executory  contract  of  sale,  get  no  valid  claim  to  the  prop- 
erty: Kohler  v.  Hayes,  41  Cal.  455;  Hegler  v.  Eddy,  53  Id.  598. 
This  is  in  accordance  with  the  great  preponderance  of  author- 
ity elsewhere:  Harkness  v.  Russell,  118  U.  S.  663.  The  reason 
is,  that  in  such  cases  the  title  to  the  property  does  not  pass, 
and  the  maxim,  Nemo  phis  juris,  etc.,  applies. 

But  in  applying  this  rule,  it  must  be  remembered,  in  general, 
that  the  policy  of  the  law  is  against  upholding  secret  liens 
and  charges  to  the  injury  of  innocent  purchasers  or  encum- 
brancers for  value,  and  in  particular,  that  mortgages  of  per- 
sonal property  are  permitted  only  in  certain  specified  cases, 
and  then  only  upon  the  observance  of  certain  formalities,  de- 
signed to  insure  good  faith,  and  to  give  notice  to  the  world  of 
the  character  of  the  transaction.  These  provisions  as  to  mort- 
gages cannot  be  evaded  by  any  mere  shuflfling  of  words. 
Where  it  is  clear  from  the  whole  transaction  that  for  all  prac- 
tical purposes  the  ownership  of  property  was  intended  to  be 
transferred,  and  that  the  seller  only  intended  to  reserve  a 
security  for  the  price,  any  characterization  of  the  transaction 
by  the  parties,  or  any  mere  denial  of  its  legal  effect,  will  not 
be  regarded.  The  question,  it  is  true,  is  one  of  intention;  but 
the  intention  must  be  collected  from  the  whole  transaction, 
and  not  from  any  particular  feature  of  it. 

In  the  present  case,  it  seems  to  us  that  the  intention  must  be 
taken  to  have  been  to  transfer  the  ownership  of  the  property, 
reserving  a  security  for  the  price,  and  nothing  more.  The 
possession  was  delivered.     The  promise  to  pay  was  absolute: 


.^  Palmer  v.  Howard.  [Cal. 

Hart  V.  Barney  &  Co.,  7  Fed.  Rep.  553.  If  Palmer  and  Rey, 
on  reselling  the  property,  had  sued  the  St.  Clairs  for  the 
difference  between  the  agreed  price  and  what  the  property 
brought  on  the  resale,  we  see  no  defense  the  latter  could  have 
made.  Moreover,  Palmer  and  Rey  were  bound  to  resell  the 
property  if  they  repossessed  themselves  of  it.  They  could  not 
have  kept  it  as  an  owner;  and  not  only  so,  but  they  were 
bound  to  resell  for  the  benefit  of  the  St.  Clairs.  The  provision 
is,  that  if  they  retake  they  shall  sell  "to  the  best  advantage, 
rendering  to  said  borrower  all  surplus,  if  any,  after  paying  the 
price  agreed  upon,  and  the  expenses  of  removal  and  sale." 
This  is  not  a  feature  of  an  executory  contract  of  sale.  It  is 
the  chief  characteristic  of  a  mortgage,  and  is  the  very  sum 
and  substance  of  proceedings  for  foreclosure.  In  a  controversy 
between  debtor  and  creditor,  as  to  whether  a  transaction  was 
a  mortgage  or  a  sale,  such  a  stipulation  would  be  conclusive 
that  it  was  a  mortgage.  Why  should  it  have  a  different  im- 
port in  this  case? 

"We  think,  therefore,  that  the  intention  was  to  vest  the  sub- 
stantial ownership  in  the  St.  Clairs,  and  that  the  sole  object 
of  the  seller  was  to  secure  payment  of  the  price;  and  this  in- 
tention appears  from  the  provisions  of  the  contract  itself. 
Such  being  the  case,  the  statement  that  the  property  "  remains 
the  property  of  Palmer  and  Rey,"  etc.,  is  inconsistent  with  the 
nature  of  the  transaction,  as  shown  by  the  contract  itself,  and 
is  a  mere  disguise  for  the  purpose  of  evading  the  requirements 
of  the  law  as  to  mortgages  of  personal  property.  To  sustain 
the  position  of  respondent  would  be,  in  effect,  to  add  to  the 
chapter  on  mortgages  a  provision  that  in  every  case  where 
personal  property  is  sold  the  seller  may  take  a  mortgage 
thereon  for  the  price,  and  that,  too,  without  the  affidavit  and 
recording  which  are  required  in  the  cases  where  such  mort- 
gages are  allowed. 

This  conclusion  is  not  in  contravention  of  the  cases  cited  by 
respondent.  For  in  none  of  them,  except,  perhaps,  a  case 
from  an  inferior  court  of  New  York  (21  Barb.  581),  did  the 
provision  above  referred  to  exist.  On  the  other  hand,  it  is  in 
accordance  with  the  decision  of  the  supreme  court  of  the 
United  States  in  Heryford  v.  Davis,  102  U.  S.  235,  which  was 
not  in  reference  to  any  local  law.  That  court  maintains  to 
its  fullest  extent  the  rule  as  to  conditional  sales  which  pre- 
vails in  this  state:  Harkness  v.  Russell,  118  Id.  663.     But  it 


May,  1887.]  Palmer  v.  Howard.  63 

held  that  the  features  above  adverted  to  took  the  case  before  it 
out  of  the  general  rule. 

For  these  reasons,  we  advise  that  the  judgment  and  order 
be  reversed,  and  the  cause  remanded  for  a  new  trial. 

FooTE,  C,  and  Belcher,  C.  C,  concurred. 

The  Court.  For  the  reasons  given  in  the  foregoing  opinion, 
the  judgment  and  order  are  reversed,  and  cause  remanded 
for  a  new  trial. 

Hearing  in  bank  denied. 

Conditional  Sale,  when  Accompanied  bt  Delivery  of  Possession 
of  the  property  to  the  vendee,  is  well  calculated  to  enable  him  either  to 
make  a  sale  of  tlie  property,  or  to  obtain  credit  upon  his  apparent  ownership 
of  it,  and  thereby  to  entrap  innocent  purchasers  and  encumbrancers.  On 
this  account  such  sales  are  not  looked  upon  with  favor,  and,  in  some  of  the 
states,  they  will  not  be  sustained  when  brought  in  conflict  with  the  interests 
of  bona  fide  purchasers  and  encumbrancers,  nor  even  as  against  judgment 
creditors  who  have  levied  upon  the  property  as  that  of  the  vendee:  March  v. 
Wrigld,  4G  111.  487;  95  Am.  Dec.  455;  Schweitzer  v.  Tracy,  76  111.  345;  Stadt- 
field  V.  Huntsman,  92  Pa.  St.  53;  37  Am.  Rep.  661;  Brunstoich  v.  Hoover,  95 
Pa.  St  508;  40  Am.  Rep.  674;    Vaughn  v.  Hopson,  10  Bush,  337. 

But  the  very  decided  preponderance  of  the  authorities  is  to  the  contrary,  and 
maintains  that,  in  these  cases,  as  well  as  in  others,  one  who  purchases  prop- 
erty or  obtains  a  lien  thereon,  must  ascertain  for  himself,  as  best  he  can,  what 
is  the  title  of  the  party  with  whom  he  deals,  and  that  in  no  event  can  his 
title  be  any  better  than  that  of  his  vendor:  Sanders  v.  Keber,  28  Ohio  St. 
636;  Bailey  v.  Harris,  8  Iowa,  331;  74  Am.  Dec.  312;  Moseley  v.  SlutUuck,  43 
Iowa,  643;  Miller  v.  SUen,  3U  Cal.  402;  89  Am.  Dec.  124,  and  note;  Morgan 
▼.  Kidder,  55  Vt,  370;  Ketchum  v.  Brennan^  53  Miss.  596;  Mount  v.  Harris, 
1  Smedes  &  M.  185;  40  Am.  Dec.  89;  Haak  v.  Linderman,  64  Pa.  St.  499;  3 
Am.  Rep.  612;  Zuchtniann  v.  Roberta,  109  Mass.  63;  13  Am.  Rep.  663;  Cole  v. 
Berry,  42  N.  J.  L.  308;  36  Am.  Rep.  611;  Lewis  v.  McCabe,  49  Conn.  140;  44 
Am.  Dec.  217;  AuUman  v.  Mallory,  6  Neb.  178;  25  Am.  Dec.  478;  Sumner 
▼.  Woods,  67  Ala.  139;  42  Am.  Rep.  104;  Loomis  v.  Bragg,  50  Conn.  228;  47 
Am.  Rep.  638;  Singer  M.  Co.  v.  Cole,  4  Lea,  459;  40  Am.  Rep,  20;  Freeman 
OQ  Executions,  sec.  124. 

Question  whether  Transaction  is  Mortoaoe  or  Conditional  Sale. 
—  The  question  still  remains,  however,  whether  a  particular  transaction 
is  really  a  conditional  sale,  or  whether  the  parties  have  put  it  in  the  form 
of  such  a  sale  for  the  purpose  of  concealing  its  real  nature,  and  of  obtaining 
the  advantages  of  a  conditional  sale  when  their  real  transaction  is  of  an  en- 
tirely  dififerent  character.  Thus,  in  many  of  the  states,  there  are  provisions 
with  respect  to  the  mortgage  of  chattels,  under  which  such  mortgages  are 
required  to  be  executed  with  certain  formalities,  and,  generally,  to  be  re- 
corded in  some  public  office  of  the  county;  and  in  some  of  the  states  the 
claos  of  personal  property  which  may  bo  the  subject  of  a  valid  chattel  mort- 
gage is  very  limited.  In  order  to  evade  the  provisions  of  the  statutes  regard- 
ing chattel  mortgages,  there  are  many  instances  in  which  the  transaction  is 
pat  in  the  form,  or  called  by  the  name,  of  a  conditional  sale.  Recently  the 
court*  have  been  inclined  to  scrutinize  these  transactions  more  closely,  and 


64  Palmer  v.  Howard.  [Cal. 

to  refuse  to  be  bound  by  the  name  and  form  given  them  by  the  parties,  if 
satisfied  from  the  whole  transaction  that  it  was  not  a  conditional  sale. 

With  respect  to  the  construction  of  contracts  claimed  to  be  conditional 
sales,  the  supreme  court  of  the  United  States  has  very  wisely  said:  "  The 
answer  to  this  question  is  not  to  be  found  in  any  name  which  the  parties 
may  give  to  the  instrument,  and  not  alone  in  any  particular  provision  it  con- 
tains, disconnected  from  others,  but  in  the  ruling  intention  of  the  parties^ 
gathered  from  the  language  they  have  used.  It  b  the  legal  effect  of  the 
whole  which  is  to  be  sought.  The  form  of  the  instrument  is  of  little  account ": 
Ueryford  v.  Dams,  102  U.  S.  243. 

The  contract  here  in  question  was  between  two  corporations,  one  of  which 
was  a  builder  of  cars,  and  the  other  the  owner  and  operator  of  a  railway. 
It  recited  that  the  former  had  constructed  certain  cars  to  be  used  on  the  rail- 
way of  the  latter  for  hire,  and  that  the  former  loaned  the  latter  the  said  cars 
for  hire  on  such  railway  for  the  period  of  four  months,  and  not  elsewhere; 
that  the  railway  company  had  executed  to  the  manufacturing  company  three 
certain  notes,  which  were  to  be  collected  at  maturity,  and  their  proceeds 
held  as  security  for  the  return  of  the  cars  when  demanded,  and  that  tho 
railway  company  had  the  privilege  of  purchasing  the  cars  at  any  time  on 
paying  the  price  fixed  by  the  contract;  that  until  such  payment  it  should 
have  no  right,  title,  or  interest  in  the  cars,  except  to  use  them,  and  no  power 
to  dispose  of,  mortgage,  or  pledge  them;  and  that  the  cars  were  to  be  deliv- 
ered to  the  manufacturing  company  when  demanded,  in  default  of  the  pay- 
ment of  said  sum,  with  interest;  that,  on  default  in  the  payment  of  any  of 
said  notes,  the  manufacturing  company  might  take  possession  of  all  of  said 
cars,  and  retain  all  payments  made  on  smy  of  such  notes,  and  would  sell  said 
cars,  and  return  to  the  railway  company  any  surplus  remaining  out  of  tho 
net  proceeds  of  the  sale  over  and  above  the  amount  due  on  the  unpaid  notes; 
and,  finally,  that,  on  the  payment  of  all  of  the  notes,  the  manufacturing  com- 
pany would  convey  the  cars  to  the  railway  company.  This  contract  was  con- 
strued not  to  be  a  conditional  sale,  but  an  attempt  to  obtain  or  reserve  a  lien 
in  a  form  forbidden  by  the  laws  of  the  state;  and  the  property  was  held  to  be 
subject  to  execution  against  the  railway  company. 

The  grounds  of  this  decision  were,  that  no  price  of  the  hire  is  mentioned 
or  alluded  to;  that  the  manufacturing  company  took  notes  for  the  full  price 
of  the  cars,  and  exacted  security  for  their  payment,  and  would  therefore 
realize  the  price  of  the  cars  before  the  four  months  had  elapsed;  that  no  part 
of  the  money  was  to  be  returned  to  the  railway  company  in  any  event,  and 
in  the  event  of  the  cars  being  taken  from  the  railway  company  and  sold,  it 
was  entitled  to  such  portion  of  the  proceeds  of  the  sale  as  remained  after 
paying  the  demands  of  the  manufacturing  company.  "In  view  of  these  pro- 
visions," said  the  court,  "we  can  come  to  no  other  conclusion  than  that  it 
was  the  intention  of  the  parties,  manifested  by  the  agreement,  the  ownership 
of  the  cars  should  pass  at  once  to  the  railway  company,  in  consideration  of 
their  becoming  debtors  for  the  price.  Notwithstanding  the  efforts  to  cover 
up  the  real  nature  of  the  contract,  its  substance  was  an  hypothecation  of  the 
cars  to  secure  a  debt  due  to  the  vendors  for  the  price  of  the  same.  The  rail- 
way company  was  not  accorded  an  option  to  buy  or  not.  They  were  bound 
to  pay  the  price,  either  by  paying  the  notes  or  surrendering  the  property  to 
be  sold  in  order  to  make  payment.  This  was  in  no  sense  a  conditional  sale. 
This  giving  the  property  as  a  security  for  the  payment  of  the  debt  is  the 
very  essence  of  a  mortgage,  which  has  no  existence  in  the  case  of  a  condi- 
tional sale." 


June,  1887.]  People  v.  Krakeb.  65 

|In  Bank.] 

People  v.  Krakeb. 

172  Caufobnia,  459.] 
Tkbm  "  AoooMPLics  "  Includes  All  Persons  concerned  in  the  commission 

of  an  offense,  irrespective  of  the  grade  of  their  guilt. 
ITnoorroborated  Evidence  of  Thief  will  not  justify  the  conviction  of 

one  indicted  for  receiving  stolen  goods,  knowing  them  to  have  been 

stolen. 
Whetheb  Witness  is  Accobiplicb  is  a  question  of  fact  for  the  jury 

Prosecution  for  receiving  stolen  goods,  knowing  them  to 
have  been  stolen.  The  defendant  was  convicted,  and  his  mo- 
tion for  a  new  trial  denied. 

C.  Ben  Darvin  and  Crittenden  Thornton,  for  the  appellant. 

George  A.  Johnson,  attorney-general,  for  the  respondents. 

By  Court,  Paterson,  J.  Defendant  was  convicted  of  the 
crime  of  receiving  stolen  goods,  knowing  them  to  have  been 
stolen. 

At  the  trial,  one  H.  G.  Matthewson,  who  was  charged  in  the 
information  with  the  stealing  of  the  goods,  was  a  witness 
against  the  defendant, — evidently  the  principal  witness. 

At  the  conclusion  of  the  testimony  and  argument,  the  de- 
fendant asked  the  court  to  instruct  the  jury  substantially  in 
the  language  of  section  1111  of  the  Penal  Code,  which  reads 
as  follows:  — 

"A  conviction  cannot  be  had  on  the  testimony  of  an  accom- 
plice, unless  he  is  corroborated  by  other  evidence,  which  in 
itself,  and  without  the  aid  of  the  testimony  of  the  accomplice, 
tends  to  connect  the  defendant  with  the  commission  of  the 
offense;  and  the  corroboration  is  not  sufficient,  if  it  merely 
shows  the  commission  of  the  offense,  or  the  circumstances 
thereof." 

The  court  refused  to  give  the  instruction  asked,  and  in  the 
charge  to  the  jury,  referring  to  the  claim  of  defendant's  coun- 
sel that  Matthewson  was  an  accomplice,  said:  "  I  charge  you 
in  plain  terms  that  if  you  believe  the  testimony  of  Horace  G. 
Matthewson,  and  from  that  testimony  you  are  satisfied  to  a 
moral  certainty  that  the  defendant  did  receive  the  property 
mentioned  in  the  information  from  him,  and  that  at  the  time 
of  the  receipt  thereof  by  the  defendant  he  knew  and  was  in- 
formed that  it  was  stolen  property,  and  he  so  received  it  for 

Am.  8t.  Rbp.,  Vol.  I.  —  6 


66  People  v.  Kbakeb.  [Cal. 

his  own  gain,  or  to  prevent  the  owner  from  again  possessing 
it,  then  you  are  authorized  to  convict  the  defendant  on  the 
testimony  of  said  Matthewson." 

Subsequently,  on  motion  for  new  trial,  the  learned  judge  had 
some  doubt  as  to  the  correctness  of  his  instruction,  but  deem- 
ing it  best  to  have  the  question  settled,  denied  the  motion,  giv- 
ing the  defendant  the  benefit  of  a  certificate  of  good  cause. 

We  think  the  instruction  given  by  the  court  was  erroneous. 

The  proposition  has  never  been  directly  passed  upon  in  this 
state,  but  in  People  v.  Levison,  16  Cal.  99,  76  Am.  Dec.  505,  the 
court,  in  commenting  upon  certain  rulings,  said:  — 

"  It  also  leaves  the  inference  that  the  unsupported  testimony 
of  the  thief  is  sufficient  to  establish  the  defendant's  guilt." 

An  accomplice  includes  all  persons  who  have  been  concerned 
in  the  commission  of  an  offense,  and  the  grade  of  guilt  of  the 
witness  is  not  important:  Abbott's  Law  Diet.;  Cross  v.  People^ 
Al  111.  152. 

In  England,  where  there  is  no  statutory  provision  against  a 
conviction  on  the  uncorroborated  testimony  of  an  accomplice, 
the  judges  always  instruct  the  jury  that  the  uncorroborated 
testimony  of  the  thief  in  cases  of  this  kind  is  not  sufficient: 
Regina  v.  Robinson,  4  Post.  &  F.  43;  Eegina  v.  Pratt,  4  Id. 
315. 

In  that  portion  of  the  charge  quoted  above,  the  court  took 
from  the  jury  the  question  whether,  as  a  matter  of  fact, 
Matthewson  was  an  accomplice,  considering,  it  seems,  only  the 
abstract  proposition  of  law  as  to  whether  the  mere  fact  that 
the  witness  was  the  thief  made  him  an  accomplice  of  the  one 
who  received  the  goods.  But  the  question  as  to  whether  the 
witness  was  an  accomplice  in  the  commission  of  the  ofiense 
is  a  question  of  fact  for  the  jury:  State  v.  Schlagel,  19  Iowa, 
169. 

In  Texas,  under  a  statute  like  section  1111,  supra,  the  court 
held  that  if  the  witness  was  an  accomplice  in  any  material  fact, 
the  jury  should  have  been  instructed  as  to  the  value  of  his 
evidence  without  corroboration:  Miller  v.  State,  4  Tex.  App. 
251.  And  in  Massachusetts  it  is  held  that  "  the  court  should 
instruct  the  jury  as  to  what  constitutes  an  accomplice,  and 
leave  it  for  them  to  determine  whether  the  witness  was  in  fact 
an  accomplice":  Commonwealth  v.  Elliot,  110  Mass.  106;  Com- 
monwealth  v.  Ford,  111  Id,  394. 

Judgment  and  order  reversed,  and  cause  remanded  for  new 
trial. 


June,  1887.]  Miller  v.  Dunn.  t7 

Searls,  C.  J.,  and  McKinstey,  McFarland,  Thiti-iJA  And 
Sharpstein,  JJ.,  concurred. 

Rehearing  denied. 

Testimont  or  Accomplices — Admissibilitt  and  1jS>'Mia  oi:  See  note  to 
Commottwealth  t.  Price,  71  Am.  Dec.  671-678. 


[In  Bank.] 

Miller  v.  Dcat* 

[72  Califosnia,  4U.] 

Words  Used  in  Constitution  will  bk  aocordbd  their  popular  rather 
than  their  technical  signification,  unieoa  the  nature  of  the  subject,  or 
the  text,  suggests  their  use  in  theit  technical  sense.  They  must  be 
taken  in  their  ordinary  and  common  acceptation,  because  they  are  pre- 
sumed to  hare  been  so  understood  oy  tneir  framers  and  by  the  people. 

Word  "Law,"  as  Used  in  CoNsriTD^'iON,  generally  signifies  a  statute,  bill, 
or  legislative  enactment,  regardlea*  of  its  constitutionality  or  validity. 

Statutes  will  not  be  Adjudged  LhcoNSTrruTiONAL,  if  there  is  a  fair  doubt 
as  to  their  validity. 

UwOONSriTUTIONAL    LaW    IS    NOT  YoiD    AB  INITIO   IN  AlL  CaSES.       It  wiU 

protect  citizens  dealing  with  /public  officers  under  its  provisions  until  id 
is  adjudged  unconstitutiontU. 
Constitutional  Law.  —  Legiauiture  may  authorize  payment  of  a  claim 
created  under  and  by  virtao  of  an  unconstitutional  law,  though  it  is  de« 
clarcd  by  the  constitutiou  to  have  no  power  to  authorize  the  payment  of 
any  claim  created  without  express  authority  of  law. 

Application  for  writ  of  mandamv^  to  compel  the  defendant, 
Dunn,  as  state  controller,  to  draw  his  warrant  for  the  payment 
of  certain  claims  au  required  by  the  act  of  the  legislature  of 
California,  approved  May  10,  1885.  This  act  was  claimed  to 
be  invalid  under  section  32,  article  4,  of  the  state  constitution, 
which  is  as  follows:  "  Section  32.  The  legislature  shall  have 
no  power  to  grant,  or  authorize  any  county  or  niunicipal 
authority  to  grant,  any  extra  compensation  or  allowance  to 
any  public  ofBcer,  agent,  servant,  or  contractor  after  service 
has  been  rendered,  or  a  contract  has  been  entered  into  and 
performed,  in  whole  or  in  part,  nor  to  pay,  or  to  authorize  the 
payment  of,  any  claim  hereafter  created  against  the  state,  or 
any  county  or  municipality  of  the  state,  under  any  agreement 
or  contract  made  without  express  authority  of  law;  and  all 
8uch  unauthorized  agreements  or  contracts  shall  be  null  and 
void."    The  writ  was  ordered  to  issue.    The  controller  appealed. 


68  Miller  v.  Ddnn.  [Cal. 

D.  M.  DelmaSf  for  the  appellant. 

A.  L.  Hart,  James  A.  Waymire,  and  William  C.  Belcher^  for 
the  respondent. 

By  Court,  Patebson,  J.  In  1880  the  legislature  passed  an 
act  entitled  "An  act  to  promote  drainage,"  which  was  approved 
by  the  governor  April  23,  1880:  Stats.  1880,  p.  123. 

In  the  passage  of  this  act,  all  the  proceedings  necessary  to 
the  effective  enactment  of  a  law  by  the  legislature  were  had; 
and  it  was  regularly  and  duly  approved  by  the  governor. 

According  to  the  provisions  of  this  act,  "  Drainage  District 
No.  1 "  was  regularly  organized,  and  public  work  under  it 
commenced.  The  directors  of  the  district,  after  proposals  for 
bids,  let  contracts  to  different  parties  to  do  various  parts  of  the 
work, — as  they  were  expressly  authorized  by  the  act  to  do. 
Respondent,  among  others,  took  two  such  contracts,  and  the 
amount  involved  in  this  action  is  for  work  and  labor  done  and 
materials  furnished  under  such  contracts.  There  is  no  ques^ 
tion  as  to  the  justness  of  his  claims.  But  after  he  had  done 
the  work  and  furnished  the  materials  under  his  contracts,  and 
before  he  had  received  his  pay  therefor,  sued  for  in  this  action, 
this  court,  in  an  action  brought  against  the  directors  of  said 
district,  decided  that  said  "  act  to  promote  drainage  "  was  un- 
constitutional. All  proceedings  under  said  act  ceased,  and 
the  state  controller  refused  to  pay  any  more  claims  under  it. 

This  being  the  situation,  and  some  just  claims  acquired  un- 
der the  act  remaining  unpaid,  the  legislature  passed  an  act, 
approved  March  10, 1885  (Stats.  1885,  p.  78),  entitled  "An  act 
to  appropriate  money  to  pay  the  indebtedness  incurred  under 
an  act  entitled,  'An  act  to  promote  drainage,'  approved  April 
23,  1880."  This  act  expressly  requires  the  controller  to  draw 
bis  warrants  in  favor  of  certain  audited  claims  which  accrued 
under  said  act  of  1880;  and  plaintiff's  demand  here  sued  for 
is  admitted  to  be  one  of  such  claims. 

The  appellant,  controller,  refused  to  draw  his  warrants  for 
respondent's  claims,  and  this  proceeding  in  mandamus  was  in- 
stituted to  compel  him  to  do  so. 

The  court  below  granted  a  peremptory  writ,  and  the  con- 
troller appeals. 

The  judgment  of  the  court  below  should  be  aflBrmed. 

It  is  claimed  by  appellant  that  the  act  of  April  23,  1880, 
having  been  held  to  be  unconstitutional  in  the  case  of  People 
V.  ParhSy  58  Cal.  624,  was  void  ah  initio^  the  same  to  all  in- 


June,  1887.]  Miller  v.  Dunn.  69 

tents  and  purposes  as  if  it  never  had  been  enacted, — a  pure 
nullity;  that  an  unconstitutional  law  is  no  law  at  all  for  any 
purpose,  and  that  the  word  "  law,"  in  article  4,  section  32,  was 
used  in  its  full  sense,  i.  e.,  a  valid  constitutional  law.  On  the 
other  hand,  it  is  contended  by  respondent  that  the  word  "law" 
in  its  popular  sense  is  a  statute  passed  by  the  legislature,  and 
approved  by  the  executive,  and  it  is  in  this  sense  that  the 
word  was  employed  in  section  32. 

It  is  useless  to  attempt  to  apply  iron-clad  rules  of  interpre- 
tation to  any  phrase  or  word  used  in  a  constitution.  Espe- 
cially is  this  true  of  a  word  which  has  a  technical  as  well  as  a 
popular  meaning.  There  is  no  word  in  the  language  which, 
in  its  popular  and  technical  application,  takes  &  wider  or  more 
diversified  signification  than  the  word  "lav," — its  use  in  both 
regards  is  illimitable.  In  determining  the  oflfice  of  words  used 
in  a  constitution,  the  object  is  to  give  eflfect  to  the  intent  of 
the  people  adopting  it:  Cooley  on  Constitutional  Limitations, 
6th  ed.,  sec.  66.  And  "  where  a  word  having  a  technical  as 
well  as  a  popular  meaning  is  used  in  the  constitution,  the 
courts  will  accord  to  it  its  popular  signification,  unless  the  very 
nature  of  the  subject  indicates,  or  the  text  suggests,  that  it  is 
used  in  its  technical  sense":  Weill  v.  Kenfield,  54  Cal.  Ill; 
Sprague  v.  Norway,  31  Id.  174.  Words  used  in  a  constitution 
should  be  construed  in  the  sense  in  which  they  were  employed. 
They  "  must  be  taken  in  the  ordinary  and  common  accepta- 
tion, because  they  are  presumed  to  have  been  so  understood 
by  the  framers,  and  by  the  people  who  adopted  it.  This  is 
unquestionably  the  correct  rule  of  interpretation.  It,  unlike 
the  acts  of  our  legislature,  owes  its  whole  force  and  authority 
to  its  ratification  by  the  people;  and  they  judged  of  it  by  the 
meaning  apparent  on  its  face  according  to  the  general  use  of 
the  words  employed,  where  they  do  not  appear  to  have  been 
used  in  a  legal  or  technical  sense  ":  Manly  y.  State,  7  Md.  135. 
The  term  "  law,"  as  used  in  its  popular  sense,  and  in  its  com- 
mon acceptation  by  "  those  for  whom  laws  are  made,"  it  may 
be  admitted,  includes  the  whole  body  or  system  of  rules  of  con- 
duct, including  the  decisions  of  courts  as  well  as  legislative 
acts,  but  it  certainly  does  not  include  that  refined,  technical, 
and  astute  idea  claimed  by  appellant,  which  recognizes  noth- 
ing within  the  meaning  of  the  term  which  is  not  constitution- 
ally and  technically  perfect. 

In  addition  to  considering  the  independent,  technical,  and 
popular  meanings  of  a  word  used  in  an  act  or  constitution,  wa 


70  Miller  v.  Dunn.  [Oal. 

may  look  at  other  sections  of  the  same  iastrument  for  the 
sense  in  which  the  word  is  used,  as  an  aid  to  determine 
whether  it  has  been  used  in  its  popular  sense  in  the  particular 
provision  under  consideration:  People  v.  Eddy,  4Z  Cal.  331;  13 
Am.  Rep.  143.  A  word  repeatedly  used  in  a  statute  will  bear 
the  same  meaning  throughout  the  instrument,  unless  it  is  ap- 
parent that  another  meaning  is  intended:  Pitte  v.  Shipley,  46 
Cal.  154;  Hoag  v.  Howard,  55  Id.  564.  Upon  an  examination 
of  the  provisions  of  the  constitution  in  which  the  word  "  law  " 
is  used,  it  will  be  found  in  a  majority  of  instances  that  it  has 
been  employed  in  the  sense  of  a  statute,  bill,  or  legislative  en- 
actment, regardless  of  the  constitutionality  or  validity  of  the 
act.  Thus  it  is  said :  "  No  law  shall  be  passed  to  restrain  or 
abridge  the  liberty  of  speech  or  of  the  press":  Sec.  9,  art.  1. 
"No  ex  post  facto  law  shall  ever  be  passed":  Sec.  16,  art.  1. 
"The  enacting  clause  of  every  law  shall  be  as  follows":  Sec. 
1,  art.  4.  "The  legislature  shall  not  pass  local  or  special  laws 
in  any  of  the  following  cases,"  etc. :  Sec.  25,  art.  4.  "The  legis- 
lature shall  not  pass  any  laws  permitting  the  leasing  .... 
of  any  franchise  ":  Sec.  10,  art.  12.  When  speaking  of  certain 
requisites  of  a  valid  law,  however,  the  framers  of  the  constitu- 
tion did  not  use  the  words  "act"  and  "law"  interchangeably. 
Thus  it  is  provided  that  "  no  bill  shall  become  a  law  without 
the  concurrence,"  etc.:  Sec.  15,  art.  4.  "Every  bill  which 
may  have  passed  the  legislature  shall,  before  it  becomes  a  law, 
be  presented  to  the  governor":  Sec.  16,  art.  4. 

Again,  it  is  provided  that  "  the  making  of  profit  out  of 
county,  city,  or  other  public  money,  or  using  the  same  for  any 
purpose  not  authorized  by  law,  ....  shall  be  a  felony."  Can 
it  be  said  that  those  who  framed  and  adopted  the  constitution 
intended  to  use  the  word  "  law  "  in  this  section  to  mean  a  law 
absolutely  unimpeachable  on  any  ground  ? — that  every  oflBcer 
should  handle  and  place  the  moneys  intrusted  to  him  at  his 
peril,  no  matter  how  fair  and  regular  the  law  directing  him 
may  be  on  its  face  ?  If  yea,  "  then  indeed,"  as  was  said  in  St. 
L.  &  S.  F.  R.  R.  Co.  V.  Evans  and  Howard  Bnck  Co.,  85  Mo. 
307,  "  are  the  rights  of  the  citizen  to  be  sacrificed  on  the  altar 
of  mistake,  and  the  statute  is  to  be  made  a  veritable  pitfall 
and  snare."  And  so  it  is  with  respect  to  section  32.  If  it 
places  a  citizen  who  has  dealt  with  the  state — under  circum- 
stances like  those  in  the  case  at  bar — beyond  the  pale  of  legis- 
lative relief  for  acts  done  by  him  prior  to  discovering  the 
invalidity  of  the  law,  it  will  be  very  unsafe  for  any  one  to  deal 


June,  1887.]  Miller  v.  Dunn.  71 

with  our  officers,  unless  he  be  possessed  of  that  superhuman 
intuition  or  mediate  intelligence  which  alone  can  tell  how  the 
question  of  the  validity  of  such  an  act  may  be  raised  and  de- 
termined after  he  has  performed  the  work. 

Of  course  there  is  no  moral  obligation  on  the  part  of  the 
state  which  can  be  enforced  upon  equitable  principles,  nor  does 
the  good  faith  of  the  party  dealing  with  the  state  cut  any 
figure  in  the  case,  if,  in  fact,  the  work  was  done  "  without  ex- 
press authority  of  law";  for  this  provision  was  placed  in  the 
constitution  to  cut  off  all  claims  based  upon  mere  good  faith 
and  equity.  There  was  a  feeling,  which  had  been  long-suffer- 
ing, that  there  should  be  some  inhibition  to  prevent  the  legis- 
lature from  allowing  the  payment  of  extra  compensation  to 
officers  who,  subsequent  to  their  election  or  appointment,  dis- 
covered that  the  regular  salary  was  insufficient,  and  also  to 
prevent  relief  bills  in  favor  of  those  who  had  dealt  with  state 
and  municipal  officers,  acting  without  express  authorization 
from  any  source,  or  under  palpably  unauthorized  and  invalid 
contracts,  and  who  were  constantly  asking  the  legislature  to 
consider  their  misfortunes  in  pity,  and  regard  them  as  deserv- 
ing subjects  of  public  benevolence.  All  this  was  doubtless 
well  understood,  and  the  phrase  "  without  express  authority 
of  law  "  was  used  in  view  of  the  judicial  and  legislative  his- 
tory of  the  state,  and  yet  it  is  by  no  means  clear  that  it  was 
intended  to  prevent  the  payment  of  a  just  claim,  expressly 
authorized  by  an  act  in  due  form,  duly  passed  and  approved, 
and  within  the  scope  of  lawful  legislation,  simply  because  after 
the  work  has  been  done,  the  court  may,  upon  great  delibera- 
tion and  searching  investigation,  declare  the  act  for  some  rea- 
son— such  as  defect  in  title  or  wrongful  delegation  of  power — 
unconstitutional. 

The  case  of  Nougues  v.  Douglass,  7  Cal.  65,  relied  on  by  ap- 
pellant, is  unlike  the  case  at  bar.  In  that  case,  and  in  People 
V.  Johnson,  6  Id.  499,  the  legislature  had  contracted  a  debt 
admitted  to  be  in  excess  of  the  three-hundred-thousand-dollar 
limit  specified  in  the  constitution,  and  the  court  held  that 
until  the  claim  was  legalized  by  being  submitted  to  a  vote  of 
the  people,  it  could  not  be  paid.  There  is  no  doubt  as  to  the 
correctness  of  the  decision  in  those  cases.  The  constitutional 
inhibition  contained  in  article  8  of  the  old  constitution  was  so 
clear  that  the  conclusion,  as  said  by  the  court,  was  "  most  ob- 
vious." The  meaning  of  words  similar  to  those  in  question 
here  were  not  involved  in  that  case.     The  court  had  no  doubt 


72  Miller  v.  Dunn.  [Cal. 

as  to  the  meaning  of  the  language  used  in  article  8,  and  if  we 
could  say  the  same  of  section  32,  which  is  before  us,  we  should, 
of  course,  apply  the  same  rule. 

But  it  follows,  we  think,  from  what  has  been  said,  that  the 
meaning  contended  for  by  appellant  is  not  necessarily  implied 
in  the  language  of  section  32;  and  if  there  be  a  fair  doubt  as 
to  the  true  construction  of  that  section,  we  should  refrain  from 
declaring  that  the  legislature  and  the  governor  have  exceeded 
their  authority  in  the  passage  and  approval  of  the  act  of 
March  10,  1885,  appropriating  money  to  pay  the  indebtedness 
incurred  under  the  so-called  drainage  act  of  April  23,  1880. 

The  doctrine  "has  been  so  often  enunciated  it  has  passed 
into  an  aphorism,  that  statutes  will  not  be  declared  unconsti- 
tutional if  there  is  a  fair  doubt  as  to  their  validity.  The  judi- 
cial department  will  not  hesitate  to  interfere  with  the  work  of 
a  co-ordinate  branch  of  the  government  when  the  latter  goes 
beyond  its  constitutional  limitations,  but  the  ground  of  inter- 
ference must  be  plain  and  substantial.  Again,  it  is  not  a  uni- 
versal rule,  as  claimed  by  appellant,  that  an  unconstitutional 
law  is  void  ab  initio,  and  absolutely  wanting  in  all  binding  force, 
and  a  nullity.  There  is  at  least  an  exception,  viz., — that  an 
act  duly  passed  or  approved  has  the  force  of  law  to  protect 
citizens  dealing  with  public  oflScers  under  its  provisions  up  to 
the  time  that  it  is  declared  unconstitutional:  Sessums  v.  Botts, 
34  Tex.  335.  And  if  a  decision  that  an  act  is  unconstitu- 
tional be  afterward  overruled,  the  statute  will  be  deemed  to 
be  valid  for  the  whole  period:  Pierce  v.  Pierce,  46  Ind.  86.  It 
has  been  held  that  an  act  creating  an  office,  though  unconsti- 
tutional, is  sufficient  to  give  color  of  title,  and  that  an  officer 
acting  under  it  is  an  officer  de  facto:  Duff's  Appeal  {Common- 
wealth V.  McCombs),  56  Pa.  St.  436;  Clark  v.  Commonwealth^ 
29  Id.  129.  But  whether  this  be  supported  by  the  weight  of 
authority  or  not,  "  nothing  is  better  settled,"  it  is  said  in  State 
V.  Douglass,  50  Mo.  596,  "than  that  the  acts  of  an  officer  de  facto 
(although  his  title  may  be  bad)  are  valid  so  far  as  they  con- 
cern the  public,  or  the  rights  of  third  persons  who  have  an  in- 
terest in  the  things  done.     Without  this  rule,  the  business  of 

a  community  could  not  be  transacted It  would  cause 

a  suspension  of  business  till  every  officer's  right  de  jure  was 
established  ":  State  v.  Carroll,  38  Conn.  462;  9  Am.  Rep.  409; 
Harhaugh  v.  Winsor,  38  Mo.  327;  Wilcox  v.  Smith,  5  Wend. 
231;  21  Am.  Dec.  213;  People  v.  Salomon,  54  111.  39;  Ez  parte 
Strang,  21  Ohio  St.  610.     It  must  be  remembered  that  the  act 


June,  1887.]  Miller  v.  Dunn.  ,       73 

of  April  23,  1880,  was  judicially  declared  unconstitutional 
solely  on  the  ground  that  under  article  3  of  the  constitution 
the  legislature  could  not  delegate  to  executive  officers  such 
legislative  powers  as  it  had  attempted  to  confer  by  that  act. 
This  was  the  only  ground  upon  which  the  minds  of  a  majority 
of  the  members  of  the  court  met:  People  v.  Parks,  58  Cal.  645. 
It  has  never  been  claimed  seriously  that  the  work  contem- 
plated by  the  act  was  beyond  the  power  of  the  legislature  to 
provide  for  in  some  manner.  If  the  legislature  had  defined 
the  boundaries  of  the  several  districts,  instead  of  delegating 
the  power  to  the  judgment  of  the  governor,  surveyor-general, 
and  state  engineer,  and  had  provided,  in  the  manner  it  did 
provide,  for  the  appointment  of  the  three  directors  who  were 
authorized  to  let,  and  who  did  in  fact  let,  the  contracts  for  the 
work,  the  result  might  have  been  difierent.  The  act  has  not 
been  declared  to  be  and  is  not  necessarily  unconstitutional  in 
all  of  its  parts.  It  is  true,  this  court  held  that  the  directors 
had  no  authority  to  contract,  but  the  creation  of  the  office  of 
director  by  the  act,  the  appointment  by  the  governor  of  three 
directors,  and  the  ostensible  authority  conferred  upon  them 
by  the  act  to  contract,  furnish  some  color  of  right  to  do  the 
thing  attempted  by  them. 

I  do  not  wish  to  be  understood  as  saying  that  the  directors 
were  officers  de  facto,  with  color  of  authority  sufficient  to  bind 
the  state,  notwithstanding  the  unconstitutionality  of  the  act 
under  which  the  contract  was  let,  and  without  regard  to  the 
provisions  of  section  32  as  to  "express  authority  of  law."  I 
cite  the  cases  upon  the  effect  of  the  acts  of  officers  de  facto 
simply  to  show  that  an  unconstitutional  law  is  not  always  and 
for  all  purposes  a  nullity,  so  far  as  the  rights  of  a  citizen  are 
concerned,  and  refer  to  the  history  of  the  case  simply  in  illus- 
tration of  my  conclusion  that  after  a  citizen  has  dealt  with 
the  state  under  circumstances  like  those  shown  here,  the  case 
does  not  come  within  the  purview  of  section  32,  and  the  legis- 
lature is  not  prohibited  thereby  from  authorizing  the  payment 
to  him  of  such  reasonable  sums  as  shall  to  it  seem  proper. 
It  is  unnecessary  to  say  whether  in  all  cases  an  act  duly 
passed  and  approved  would  be  "express  authority  of  law" 
within  the  meaning  of  that  section.  There  may  be  statutes 
palpably  violative  of  principles  so  plain  and  well  understood 
as  to  be  no  authority  or  protection  at  all;  but  as  to  that  I  ex- 
press no  opinion. 

Judgment  affirmed. 


74  Miller  v.  Dunn.  [Cal. 

Searls,  C.  J.,  and  McFarland  and  Sharpstein,  JJ.,  con- 
curred. / 

Temple,  J.,  dissented.  He  denied  that  there  was  any  common  usage  or 
popular  sense  in  which  the  word  "law  "was  given  any  other  signification 
than  that  of  a  valid  law;  and  insisted  that  as  the  constitutional  phrase  was 
"without  express  authority  of  law,"  the  word  "law"  was  there  used  in  its 
technical  sense,  for  it  could  not  be  assumed  that  it  was  intended  that  a  claim 
might  be  authorized  by  a  law  which  wag  in  itself  without  authoritj',  and 
therefore  invalid.  He  further  contended  that  even  were  there  no  express 
constitutional  prohibition,  the  legislature  would  be  without  power  to  author- 
ize the  payment  of  a  claim  created  in  violation  of  the  constitution,  and  in 
support  of  this  position  relied  upon  Nouguea  v.  Douglass,  7  Cal.  65.  He  also 
was  of  the  opinion  that  the  statute  under  consideration  operated  as  a  gift  to 
the  beneficiaries,  and  was  therefore  forbidden  under  section  31,  article  4,  of 
the  constitution,  which  declares  that  the  legislature  shall  not  have  power 
"  to  make  any  gift,  nor  authorize  the  making  of  any  gift,  of  any  public 
money  or  thing  of  value  to  any  individual,  municipal  or  other  corporation, 
whatever."  Upon  this  point  he  said:  " It  is  admitted  that  the  contract  is 
utterly  void;  that  it  imposes  no  legal  liability  or  obligation  on  the  part  of 
the  state.  Tlie  state  has  received,  and  will  receive,  nothing  from  the  parties 
to  whom  this  money  is  to  be  given.  True,  if  the  contract  had  been  valid  in 
legal  contemplation,  the  state  would  have  received  a  consideration  in  the  ser- 
vice performed  by  reason  of  the  contract,  although  there  was  nothing  of  ben- 
efit in  it.  Now,  a  gift  is  something  bestowed  without  return.  If  this  be 
not  something  bestowed  without  return,  what  is  the  thing  returned  ?  Can 
there  be  any  other  reason  for  holding  this  appropriation  not  a  gift  except 
that  it  would  be  highly  inequitable  and  unjust  not  to  compensate  the  re- 
spondent for  services  rendered  pursuant  to  an  act  of  the  legislature  believed 
to  be  valid  ?  In  other  words,  the  claim  is  founded  upon  a  moral  obligation, 
which  the  state  ought  to  recognize  and  satisfy.  This  construction,  I  submit, 
virtually  repeals  sections  31  and  32,  article  4,  of  the  constifution.  What 
sense  is  there  in  prohibiting  the  contract,  and  declaring  it  void,  if  the  legis- 
lature may  nevertheless  voluntarily  perform  the  contract  on  the  part  of  the 
state  ?  What  practical  purpose  is  served  by  forbidding  gifts  of  the  people's 
money  or  property,  if  the  legislature  can  recognize  and  discharge  a  moral 
obligation  ?  The  legislature  must  be  the  judge  of  the  moral  obligation,  and 
would  rarely  ever  care  to  make  a  gift  where  it  could  not  claim  the  existence 
of  a  moral  obligation.  My  brothers  deny,  as  I  understand  the  decision,  that 
they  hold  any  such  doctrine.  I  hope  this  will  prevent  the  decision  from 
being  regarded  as  a  precedent  upon  this  question;  but  will  it  ?  I  have  shown 
that,  disclaim  it  as  they  will,  such  is  the  real  ground  of  the  decision.  Our 
successors  will  justly  claim  that  it  can  be  sustained  on  no  other  theory. 
This  is  the  excuse  for  all  relief  bills.  Can  any  one  deny  that  the  sole  pur- 
pose of  the  provisions  was  to  prevent  this  very  legislation  ?  But  I  do  not 
care  to  pursue  the  subject  further.  The  constitution  itself  directs  how  laws 
shall  be  made,  and  of  course  the  law  meant  must  be  a  law  passed  as  in  the 
constitution  provided.  The  whole  claim  seems  to  me  baseless.  A  void  con- 
tract based  on  a  void  law,  ratified  against  the  express  prohibition  of  the 
constitution,  constitutes  a  valid  claim  against  the  state." 

The  decision  in  the  principal  case  was  received  with  surprise  by  the  bar  of 
the  state  in  which  it  was  made,  and  was  generally  spoken  of  as  one  in  which 


June,  1887.]  Cobuen  v.  Goodall.  76 

the  equities  of  persons  doing  work,  and  advancing  materials  under  the 
drainage  act  of  1880,  had  proved  too  strong  for  the  law.  The  claims  exist- 
ing under  the  drainage  act  of  1880  were  contracted  in  unquestioned  good 
faith  on  the  part  both  of  the  commission  and  of  the  contractors  and  laborers 
who  sought  employment  under  it,  and  were  such  as  ought  to  be  paid,  if  it 
were  possible  to  so  construe  the  constitution  as  to  permit  their  payment. 

Either  unconstitutional  enactments  must  be  treated  as  void,  or  the  attempt 
to  fix  any  bounds  of  legislative  authority  must  1>e  abandoned.  Legislators, 
when  attempting  to  exercise  an  authority  interdicted  by  the  constitution, 
have  no  more  legislative  sanction  for  their  act  than  has  a  judge  in  pro* 
nouncing  judgments  with  respect  to  subject-matters  over  which  ho  has  no  juris- 
diction. In  neither  case  has  the  act  or  judgment  any  legal  existence.  To  en- 
force this  rule  may  operate  harshly  and  to  the  prejudice  of  a  few  individuals 
who  were  so  unfortunate  as  to  mistake  the  law  fixing  limits  to  judicial  and 
legislative  authority.  But  not  to  enforce  it  is  to  subject  the  whole  commu< 
nity  to  laws  and  decrees  against  which  the  fundamental  law  had  guaranteed 
protection.  If  it  be  once  established  that  a  law  is  valid  until  judicially  de- 
clared to  be  unconstitutional  and  void,  then  the  legislature  is  invited  to  pass 
unconstitutional  laws  under  the  judicial  assurance  that  they  will  operate  at 
least  until  the  judicial  machinery,  always  tardy  in  action,  has  been  set  in 
motion,  and  enabled  to  mark  them  with  the  stamp  of  condemnation.  If  a 
statute  is  unconstitutional,  and  claims  created  under  it  are  therefore  invalid, 
how  can  they  be  validated  by  a  subsequent  statute,  without  announcing  a 
rule  of  law  to  the  effect  that  where  the  legislature  has  no  power  to  enact  a 
law  it  may  nevertheless  enact  such  law  T  —  that  such  enactment,  though  not 
t  tlid,  may,  if  carried  into  effect,  be  followed  by  a  further  enactment  validat- 
ing, or  at  least  compensating,  the  acts  done  under  the  first  unauthorized  en- 
actment? See  Plielan  v.  San  Francisco,  6  Cal.  540;  Cooley  on  Constitutional 
Limitations,  188;  Fishery.  McOirr,  61  Am.  Dec.  381;  Osbom  v.  Untied  States, 
9  Wheat.  868. 

Liability  of  Pebsons  Actino  undek  Unconstitutional  Statute:  See 
note  to  Kelly  v.  Bemis,  64  Am.  Dec.  51-55. 


COBURN    V.    GoODALL. 

[72  Califobma,  498.] 

AssioNEEs  or  Lease  Holding  Undivided  Interests  thereunder  in  nn< 
equal  proportions,  as  tenants  in  common,  are  jointly  and  severally  liable 
to  the  lessor  for  a  breach  of  a  covenant  to  repair  or  to  surrender  posses- 
sion. 

Eminent  Domain.  —  Order  of  judge  putting  plaintiff  in  possession  of  land* 
pending  proceedings  for  their  condemnation  is  void. 

Kbturn  or  Sheriff  on  Writ  or  Restitution  u  Prima  Facie  Evidence 
only  of  the  fact  therein  stated,  in  California. 

Judgment  in  Ejectment  does  not  Preclude  Plaintift  from  Maintain- 
ing a  subsequent  action  to  recover  damages  for  withholding  possession 
of  the  premises,  where  the  record  in  the  former  suit  shows  that  all  claim* 
for  such  damages  were  withdrawn. 

Judgment  in  Ejectment  is  not  Conclusivi  as  to  Tims  of  Ouster,  when 
all  claimi  for  mesne  profits  and  damages  were  withdrawn. 


76  COBURN  V.   GOODALL.  [Cal. 

Lessor  Irrevocably  Elects  to  Terminate  Lease  when  ho  brings  an  action 
of  ejectment  against  the  lessees,  or  their  assignees,  to  recover  the  leased 
premises.  Therefore,  he  cannot  recover  for  rent  subsequently  falling 
due,  though  no  judgment  has  been  rendered  in  the  action  of  ejectment. 

Right  to  Sub  for  Breach  of  Covenant  to  Surrender  Possession  is 
NOT  Waived  by  a  subsequent  action  of  ejectment  for  the  demised  prem- 
ises, in  which  the  recovery  of  damages  is  not  sought. 

In  Determining  Amount  of  Damages  Sustained  by  Failttre  to  Sur- 
render Leased  Premises  to  the  lessor,  the  amount  of  profits  derived  by 
the  defendants  from  a  wharf  and  chute  adjacent  thereto  is  a  proper  sub- 
ject of  inquiry,  providing  it  is  not  taken  as  the  measure  of  damages.  It 
is  proper  to  put  the  court  in  possession  of  all  pertinent  facts  and  circum- 
stances from  the  consideration  of  all  of  which  the  ultimate  fact  of  the 
quantum  of  damages  can  be  deduced. 

Interest  is  not  Allowable  in  an  action  for  the  breach  of  a  contract,  if  the 
damages  sought  to  be  recovered  are  so  unliquidated  and  uncertain  that 
they  must  be  made  certain  by  proof  and  adjudication. 

Action  by  plaintiflF,  in  his  own  right,  and  as  assignee  of 
his  co-lessor,  Clark,  against  the  defendants  as  assignees  of  a 
lease,  to  recover  damages  sustained  by  a  breach  of  a  cove- 
nant therein  contained  for  the  surrender  of  possession  at 
its  termination.  The  lease  was  made  January  1, 1863,  by  the 
plaintiff  and  Jeremiah  Clark  to  James  Brennan,  who  assigned 
an  undivided  half  to  defendant  Sudden,  who  assigned  one 
fourth  to  defendant  Fake.  Brennan's  remaining  half-interest 
in  the  lease  was  assigned  to  defendant  O'Farrell,  who  rtigigned 
one  eighth  to  defendant  Goodall,  one  eighth  to  defendant  Wen- 
singer,  and  one  eighth  to  defendant  Nelson.  During  the  pend- 
ency of  the  action,  a  dismissal  was  entered  as  to  defendant  Fake, 
and  defendant  O'Farrell  died.  No  attempt  was  made  to  make 
his  representatives  parties  to  the  action.  The  defendants  re- 
fused, at  the  termination  of  the  lease,  to  wit,  October  1,  1872, 
to  surrender  five  acres  of  the  leased  premises  known  as  Pigeon 
Point.  An  action  of  ejectment  was  brought  by  the  plaintiflf 
against  the  present  defendants  and  others  to  recover  possession 
of  the  lands  now  in  controversy,  in  which  action  a  wharf  and 
chute  built  from  the  shore  on  the  demised  premises  below  low- 
water  mark  into  the  ocean  were  claimed  to  be  a  part  of  the 
premises,  on  the  ground  that  they  had  been  affixed  to  the  land, 
or  had  become  an  incident  or  appurtenant  thereto.  The  plain- 
tiflf recovered  judgment,  which,  on  appeal,  was  modified  by 
striking  therefrom  so  much  thereof  as  includes  the  wharf  and 
chute  below  the  line  of  high  water:  See  Cobum  v.  Ames,  52 
Cal.  385;  28  Am.  Rep.  634;  and  57  Cal.  201.  Subsequently 
this  action  was  begun,  and  resulted  in  a  judgment  for  the 


June,  1887.]  Coburn  v.  Goodall.  77 

plaintiff  against  the  defendants  Sudden,  Goodall,  Nelson,  and 
Wensinger,  for  $10,000  as  damages,  sustained  by  the  breach 
of  the  covenant  sued  upon,  and  the  additional  sum  of  $6,520 
interest. 

McAllister  and  Bergin,  and  Fox  and  Kellogg,  for  the  appel- 
lants. 

Garber,  Thornton,  and  Bishop,  and  Craig  and  Meredith,  for 
the  respondent. 

By  Court,  Paterson,  J.  It  was  decided  in  Coburn  v.  AmeSf 
52  Cal.  385,  28  Am.  Rep.  634,  that  the  wharf  and  chute  were 
not  on  the  demised  premises,  were  not  aflSxed  or  appurtenant 
thereto,  and  therefore  were  not  "  improvements "  within  the 
meaning  of  that  term  as  used  in  the  lease.  The  court  held 
that  the  plaintiff  had  no  such  right  to  the  possession  of  the 
land  below  the  line  of  high  water  as  to  enable  him  to  main- 
tain ejectment,  and  the  judgment  of  the  lower  court  was  modi- 
fied accordingly.  Pending  the  appeal  in  that  case,  a  receiver 
was  appointed  in  the  trial  court  to  take  possession  of  the  prop- 
erty, collect  tolls,  and  manage  the  wharf  and  chute.  After 
judgment  was  modified  in  accordance  with  the  order  of  this 
court,  the  receiver,  under  directions  from  the  court  in  which 
he  was  appointed,  paid  over  all  the  money  in  his  hands  to  the 
plaintiff.  The  defendants,  among  whom  were  Goodall  and 
Nelson,  defendants  herein,  again  appealed  to  this  court,  and 
it  was  held  that  as  the  plaintiff  was  not  entitled  to  the  posses- 
sion of  the  wharf  and  chute,  he  was  not  entitled  to  all  of  the 
profits  derived  from  the  use  of  them  pending  the  litigation. 
The  cause  was  accordingly  again  remanded  for  the  adjust- 
ment of  the  accounts:  Coburn  v.  Ames,  57  Cal.  204. 

This  action  was  commenced  on  November  25,  1875.  The 
lease  which  is  made  the  basis  of  this  suit  contained  a  cove- 
nant that  Brennan,  the  lessee,  at  the  expiration  of  said  lease, 
would  surrender  to  Coburn  and  Clark  (the  lessors  or  their 
assigns),  with  such  improvements  as  shall  have  been  erected 
or  made  thereon,  but  there  was  nothing  in  the  covenant  pro- 
viding in  terms  that  the  lease  should  be  binding  upon  the 
assigns  of  the  lessees. 

The  defendants  are  all  assignees  of  undivided  parts  amount- 
ing to  five  eighths  of  the  whole  interest  in  the  lease,  viz.:  Sud- 
den one  fourth,  Goodall  one  eighth,  Nelson  one  eighth,  and 
Wensinger  one  eighth. 


78  CoBURN  V.  Good  ALL.  [Cal. 

The  action  as  to  defendant  Fake,  who  owned  one  quarter, 
was  dismissed.  The  other  defendant,  O'Farrell,  who  owned 
one  eighth,  died  pending  the  action,  and  his.  representative 
has  never  been  substituted.  Judgment  was  rendered  against 
the  defendants  Sudden,  Goodall,  Nelson,  and  Wensinger  for 
$10,000,  with  interest  thereon  from  commencement  of  suit, — 
$6,520,— total  $1G,520,— and  costs  of  suit. 

It  is  claimed  that  these  four  defendants,  if  liable  at  all 
under  the  covenant  to  surrender  (which  is  denied),  are  liable 
only  in  respect  of  their  privity  of  estate,  and  that  such  lia- 
bility is  several  and  proportionate  to  the  interest  acquired  by 
each  of  them.  To  this  proposition  we  cannot  assent.  There 
are  some  authorities  to  that  effect,  but  the  weight  of  opinion, 
we  believe,  is  contrary  thereto,  and  with  better  reason  it  is 
held  that  while  assignees  of  a  lease  hold  as  tenants  in  com- 
mon, they  are  jointly  and  severally  liable  on  covenants  to 
repair  and  to  deliver  up  at  the  end  of  the  term.  These  cove- 
nants, which  are  connected  with  the  estate,  run  with  the  land, 
and  vest  in  point  of  benefit  and  liability  in  the  assignee,  while 
the  personal  privity  of  contract  between  the  lessor  and  lessee 
remains  unaffected  by  the  transfer:  1  Washburn  on  Real 
Property,  329,  435;  2  Piatt  on  Leases,  351;  Taylor  on  Land- 
lord and  Tenant,  7th  ed.,  sec.  530,  note;  Hayes  v.  Morrison^ 
38  N.  H.  95;  Fitc^i  v.  Johnson,  104  111.  117. 

The  authorities  cited,  which  relate  to  questions  concerning 
the  apportionment  of  rent,  are  not  applicable,  as  payment  of 
rent  is  an  exception  to  the  rule:  Freeman  on  Cotenancy,  sec. 
346. 

The  demurrer  was  properly  overruled,  if  our  view  of  the 
liability  of  tenants  in  common,  assignees  of  the  whole  of  the 
demised  premises,  though  in  unequal  proportions,  is  correct, 
i.  e.,  that  they  are  jointly  and  severally  liable  on  all  cove- 
nants and  obligations  of  the  assignors,  except  perhaps  the 
payment  of  rent.  The  possession  of  one  of  the  tenants  i«  the 
possession  of  all.  There  is  no  unity  of  interest,  title,  or  time 
as  in  joint  tenancy,  but  as  to  unity  of  possession  they  are 
identical.  So  far  as  enjoyment  of  possession  goes,  they  are 
all  equal,  whatever  may  be  the  difference  in  shares  held  by 
each.  If  they  are  not  jointly  and  severally  liable,  one  tenant 
in  common  owning  a  small  undivided  interest  might  prevent 
the  delivery  of  the  property  in  its  entirety,  which  the  lessor  is 
entitled  to  under  his  contract,  with  or  without  an  express 
covenant  therefor.     We  see  no  hardship  in  this  rule,  for  the 


June,  1887.]  Cobuhn  v.  Goodall.  79 

assignees  in  possession,  upon  authority  and  in  reason,  stand 
in  the  shoes  of  the  lessee;  and  so  long  as  they  occupy  such 
relation  to  the  lessor  and  his  property,  they  are  bound  by  the 
terms  of  the  contract  with  the  lessee  and  the  obligations  im- 
plied therefrom  by  law.  While  one  of  the  tenants  in  common 
remains,  the  unity  of  possession  is  undivided;  and  as  to  those 
at  least  who  continue  in  possession  by  themselves  or  by  agents, 
the  unity  of  obligation  flows  from  unity  of  possession. 

There  is  nothing  in  the  judgment  which  will  prevent  the 
four  defendants  against  whom  it  was  entered  from  enforcing 
contribution  from  Fake  and  the  representatives  of  O'Farrell, 
if  the  right  to  contribute  exist. 

The  evidence  is  sufl&cient,  we  think,  to  sustain  the  finding 
that  the  defendants  continued  in  possession  of  the  five-acre 
tract  from  the  expiration  of  the  lease  to  the  time  this  action 
was  commenced.  This  tract  or  parcel,  as  described  by  the 
court  in  its  findings,  is  *'  commonly  known  as  Pigeon  Point 
shipping  point,  and  used  for  the  purpose  of  handling  and 
shipping  freight,  and  lying  above  and  bounded  on  one  side  by 
ordinary  high- water  mark."  As  between  these  defendants 
and  this  plaintiflF,  the  grant  of  the  wharf  franchise  by  the 
board  of  supervisors  to  Templeton  and  Moore  in  1870  is  im- 
material. It  was  the  duty  of  the  defendants  to  deliver  to 
plaintiff  the  possession  of  the  five-acre  tract.  We  think  there 
was  evidence  sufiBcient  to  warrant  the  court  below  in  finding 
that  Ames  did  not  deprive  the  defendants  of  possession. 
There  was  evidence  tending  to  show  that  defendants  were 
using  the  name  of  Ames  as  a  disguise  for  their  own  posses- 
sion. Furthermore,  there  seems  to  be  no  longer  any  doubt 
that  orders  like  that  of  the  district  judge  made  in  the  case 
referred  to  September  27,  1872,  putting  plaintififs  in  the  pos- 
session of  the  land  during  the  pendency  of  the  action  for  con- 
demnation, are  void:  Sanborn  v.  Belden,  51  Cal.  266;  San 
Mateo  Water  Works  v.  Sharpstein,  50  Id,  284.  With  respect 
to  the  possession  which  it  is  claimed  Coburn  secured  by  virtue 
of  the  writs  of  restitution  served  in  the  case  of  Templeton  and 
Ames  V.  Coburn  and  Clark,  it  is  sufiBcient  to  say  that  the  evi- 
dence is  conflicting  as  to  the  fact  of  possession.  The  return 
of  the  ofljcer  upon  the  writ  was  only  primn  facie  evidence  of 
the  fact  stated:  Pol.  Code,  sec.  4178.  Plaintiflf  testified  that 
he  had  no  actual  possession;  that  the  moment  the  sherifif  left 
"they  just  jumped  right  in  and  took  possession  again." 

It  is  claimed  by  appellant  that  the  ejectment  suit  of  Loren 


80  COBUBN  V.  GOODALL.  [CaL 

Coburn,  as  plaintiflf,  v.  Josiah  P.  Ames,  Ellen  Templeton, 
administratrix  of  the  estate  of  Horace  Templeton,  Charles 
Goodall,  Christopher  Nelson,  and  George  C.  Perkins,  defend- 
ants, commenced  on  the  sixteenth  day  of  January,  1885,  and 
the  findings  and  judgment  therein,  establishes  an  election  by 
Coburn  to  treat  Goodall  and  Nelson  as  trespassers,  dissolves 
all  their  relations  with  him  as  assignees  of  said  lease,  and  ad- 
judicates facts  which  are  inconsistent  with  the  claim  of  plain- 
tiflf in  this  action.  In  that  case  all  claim  for  damages,  the 
findings  therein  show,  was  expressly  withdrawn  by  plaintiff. 
If  this  had  not  been  done,  there  is  no  question  that  the  judg- 
ment would  be  conclusive  on  the  question  of  damages,  as  it 
was  made  an  issue  in  the  case.  "An  adjudication  is  final  and 
conclusive,  not  only  as  to  the  matter  actually  determined,  but 
as  to  every  other  matter  which  the  parties  might  have  liti- 
gated, and  have  had  decided  as  incident  to  or  essentially  con- 
nected with  the  subject-matter  of  the  litigation,  and  every 
matter  coming  within  the  legitimate  purview  of  the  original 
action,  both  in  respect  to  matters  of  claim  and  of  defense": 
Freeman  on  Judgments,  sec.  240.  When,  however,  the  record 
on  its  face  shows  that  the  issue  was  withdrawn  from  the  con- 
sideration of  the  court,  the  presumption  that  it  was  adjudi- 
cated no  longer  applies.  The  right  to  recover  possession,  and 
the  right  to  recover  mesne  profits,  were  not  necessarily  united 
in  the  action  in  ejectment.  The  right  to  join  causes  of  action 
for  both  is  a  mere  privilege  granted  by  statute. 

That  the  record  in  that  case  is  not  an  estoppel  as  to  the  time 
of  ouster  is  equally  clear:  Yount  v.  Howell,  14  Cal.  465;  for  if 
the  question  of  mesne  profits  may  be  considered  out  of  the 
case  by  virtue  of  the  finding  of  a  withdrawal  thereof,  then 
there  were  but  two  other  questions  which  could  have  been  ma- 
terial in  that  action  of  ejectment,  viz.,  right  of  entry  by 
plaintiflf,  and  wrongful  possession  of  defendant,  on  the  day 
suit  was  commenced. 

Appellant  claims  further  that  the  bringing  of  the  suit  in 
ejectment  was  an  election  of  a  remedy  inconsistent  with  this 
action,  and  concludes  him  from  maintaining  the  latter.  The 
rule  stated  in  the  syllabus,  taken  from  Jones  v.  Carter,  15  Mees. 
&  W.  718,  is  doubtless  correct:  "  The  service  by  lessor  upon 
lessee  of  a  declaration  in  ejectment  for  the  demised  premises, 
for  a  forfeiture,  operates  as  a  final  election  by  the  lessor  to  de- 
termine the  term;  and  he  cannot  afterward  (although  there 
has  not  been  any  judgment  in  the  ejectment)  sue  for  rent  due, 


June,  1887.]  Coburn  v.  Goodall.  $1 

or  covenants  broken,  after  the  service  of  the  declaration." 
That  was  an  action  of  covenant  in  a  mining  lease,  in  which 
breaches  were  alleged,  the  first  for  non-payment  of  rent,  and 
others  for  violation  of  covenants  requiring  defendants,  during 
the  continuance  of  the  demise,  to  keep  six  men  searching  for 
mineral  for  certain  periods  in  each  year,  for  keeping  legible 
accounts  of  ore  extracted,  etc.;  but  the  principal  question  re- 
lated to  rent.  The  case  before  us,  however,  is  not  for  rent,  or 
for  damages  caused  by  a  breach  of  covenant  subsequent  to  tho 
commencement  of  the  ejectment  suit.  The  plaintiff's  right 
to  recover  both  possession  and  damages  arose  immediately 
upon  the  failure  of  the  defendants  to  deliver  at  the  expiration 
of  the  lease,  and  in  both  actions  the  defendants  are  treated 
as  wrongfully  in  possession,  and  charged  with  a  continuous 
wrongful  withholding  from  the  time  the  covenant  was  broken 
down  to  the  commencement  of  the  action. 

There  was  evidence  to  support  the  finding  of  the  court  that 
Wensinger  and  Sudden  continued  in  possession  of  the  tract 
from  the  expiration  of  the  lease  to  the  commencement  of  the 
action.  It  is  not  for  the  appellate  court  to  say  that  the  court 
below  ought  to  have  believed  certain  witnesses  rather  than  the 
one  on  whose  testimony  the  finding  is  based.  There  are  cir- 
cumstances tending  to  corroborate  plaintiff's  testimony  and 
claim  that  Scotty  held  possession  for  and  as  agent  of  Wensin- 
ger and  Sudden.  Coburn  failed  to  obtain  possession  under  the 
written  surrender  executed  by  Sudden  to  him,  and  of  course, 
if  such  failure  was  due  in  any  degree  to  the  act  or  neglect  of 
Sudden,  it  was  inoperative:  Kower  v.  Gluck,  33  Cal.  406. 

It  is  claimed  that  the  court  erred  in  allowing,  against  the 
objection  of  defendants,  evidence  as  to  profits  derived  from 
-he  wharf  and  chute;  that  such  was  improper  data  for  the  as- 
sessment of  damages,  and  it  will  be  presumed  that  injury 
resulted  from  the  admission  of  such  evidence.  The  court 
evidently  did  not  hold  that  the  defendants  were  bound  to  de- 
liver the  wharf,  nor  was  the  amount  of  profits  derived  from  the 
wharf  and  chute  taken  as  the  measure  of  damage;  otherwise  a 
much  larger  sum  would  have  been  fixed  by  the  court  as  the 
damage  suffered  by  plaintiff.  In  determining  the  amount  of 
damage  sustained  by  plaintiff,  we  think  that  the  question  of 
profits  derived  from  the  wharf  was  a  proper  subject  of  inquiry, 
providing  it  was  not  taken  as  the  measure  of  damage. 

If  it  be  true  that  the  defendants  were  wrong-doers  in  refus- 
ing to  deliver  possession  to  plaintiff,  the  question  is,  How 

▲n.  St.  RSF.,  VoL.1.  — • 


92  COBUEN  V.   GOODALL.  [Cal. 

much  was  Coburn  damaged  by  the  failure  of  the  defendants 
to  do  what  it  was  their  duty  to  do?  If  it  be  assumed  that 
those  profits  would  necessarily  have  been  less,  if  they  had  de- 
livered to  him  the  portion  above  high  water,  retaining  the  part 
below  themselves,  it  was  easy  to  arrive  at  and  deduct  the  dif- 
ference. All  he  had  to  do  was  to  complete  it,  and  the  cost  of 
completion  was  capable  of  demonstration.  He  was  not  allowed 
to  recover  as  such  the  profits  of  the  whole  property.  But  in 
this,  as  in  similar  cases,  it  was  proper  and  necessary  to  put 
the  court  in  possession  of  all  pertinent  facts  and  circumstances 
from  the  consideration  of  all  of  which  the  ultimate  fact  of  the 
quantum  of  damage  was  to  be  deduced. 

The  court  below  allowed  damages  for  the  detention  only  of 
that  part  of  the  demised  premises  which  it  found  was  actually 
and  exclusively  detained,  used,  and  possessed  by  the  defend- 
ants from  the  expiration  of  the  lease,  October  1,  1872,  to  the 
commencement  of  this  action,  November  24, 1875;  and  whether 
we  take  into  consideration  the  results  flowing  from  the  acts  of 
defendants  under  the  doctrine  of  encroachment  contended  for 
by  plaintiff  or  not,  ten  thousand  dollars,  the  principal  amount 
of  damages  allowed,  is  reasonable  and  just. 

We  think,  however,  that  the  court  erred  in  allowing  interest 
on  the  ten  thousand  dollars.  Section  3287,  Civil  Code,  reads 
as  follows:  "  Every  person  who  is  entitled  to  recover  damages 
certain,  or  capable  of  being  made  certain  by  calculation,  and 
the  right  to  recover  which  is  vested  in  him  upon  a  particular 
day,  is  entitled  also  to  recover  interest  thereon  from  that  day, 
except  during  such  time  as  the  debtor  is  prevented  by  law,  or 
by  the  act  of  the  creditor,  from  paying  the  debt."  But  the 
damages  were  unliquidated  and  uncertain,  and  could  only  be 
made  certain  by  proof  and  adjudication. 

Where  the  plaintiff's  claim  was  an  uncertain  and  unli- 
quidated demand,  and  the  amount  due  could  not  be  ascer- 
tained from  the  face  of  the  contract,  but  was  to  be  settled  by 
process  of  law,  this  court  has  held  that  interest  eo  nomine 
cannot  be  allowed:  Brady  v.  Wilcoxson,  44  Cal.  245.  Nor 
could  interest  be  allowed  under  section  3288,  Civil  Code,  for 
interest  under  this  section  can  only  be  allowed  for  the  breach 
of  an  obligation  not  arising  from  contract,  and  then  only  in 
case  of  oppression,  fraud,  or  malice.  If  plaintiff  shows  any 
case  at  all,  it  is  for  breach  of  an  obligation  which  does  arise 
from  contract,  and  the  court  so  finds. 

It  is  therefore  ordered  that  the  judgment  be  and  it  is 


June,  1887.]  Cobubn  v.  Goodall.  83 

hereby  modified  by  striking  therefrom  the  sum  of  $6,620,  and 
as  so  modified  the  judgment  shall  stand. 

Temple  and  McKinstry,  JJ.,  concurred. 

Hearing  in  bank  denied. 

Assignment  ot  Leasb  does  not  discharge  the  assignor  from  the  obligation 
to  pay  rent,  nor  from  any  other  obligation  assumed  by  him  in  the  lease;  nor 
can  he,  by  an  assignment  of  a  portion  of  the  demised  premises,  compel  his 
lessor  to  apportion  the  rent:  Taylor  on  Landlord  and  Tenant,  sec.  438;  Bailey 
V.  Wells,  76  Am.  Dec.  233. 

While  Lessee  cannot  Relieve  Himselj  from  the  express  and  implied 
covenants  of  the  lease  by  an  assignment,  yet  snch  assignment  makes  the  as* 
signee  answerable  on  such  covenants  if  the  lessor  chooses  to  pursue  him: 
State  V.  MaHin,  52  Am.  Rep.  167;  Childa  v.  Clark,  49  Am.  Dec.  164;  Van 
Rensselaer  v.  Hays,  19  N.  Y.  93;  Steunrt  v.  L.  /.  R.  R.  Co.,  55  Am.  Rep.  844; 
Van  Rensselaer  v.  Bradley,  45  Am.  Dec.  451.  If  the  assignment  is  for  a 
specific  part  of  the  demised  premises,  and  the  covenant  is  divisible,  it  will 
attach  upon  such  "parcel  jpro  tanto,  and  the  assignee  will  be  answerable  for 
his  proportion  only  of  any  charge  upon  the  land  which  was  a  common  bur- 
den upon  the  whole ":  Taylor  on  Landlord  and  Tenant,  sec.  443.  But  an 
assignment  must  be  for  the  whole  term  in  the  land,  or  some  part  thereof.  If 
the  lessee  assign  for  less  than  the  whole  term  on  the  land,  subject  to  the  as- 
signment, this  is  a  mere  subleasing,  and  the  lessor  cannot  recover  rents  from 
the  sublessee.  For  remedies  of  lessor  against  assignees  and  sublessees,  sea 
note  to  Fulton  v.  Stuart,  15  Am.  Dec.  543-545. 

LiABiuTT  OF  Tenants  in  Cobimon,  Holdino  as  Assignees  or  Leased 
Pbkicisks.  —  The  principal  case  maintains  that  where  several  persons  become 
the  assignees  of  a  lease  as  tenants  in  common,  "they  are  jointly  and  sever* 
ally  liable  on  covenants  to  repair  and  to  deliver  up  at  the  end  of  the  term.** 
As  a  consequence  of  this  rule,  the  court  affirmed  a  judgment  against  part 
only  of  such  tenants  in  common,  for  the  entire  damages  resulting  from  a  re- 
fusal to  surrender  possession  of  the  demised  premises  at  the  termination  of 
the  lease.  While  the  opinion,  in  efiFect,  states  that  there  are  authorities 
against  as  well  as  for  the  proposition,  it  adds  that  the  weight  of  opinion  is  in 
favor  of  the  rule  adopted  by  the  court.  The  rule  as  here  maintained  may 
be  correct;  but  we  have  been  unable  to  discover  any  authorities  either  affirm- 
ing or  denying  it.  The  relevancy  of  the  cases  cited  by  the  court  is  not  ap- 
parent. The  decision  upon  this  topic  must  be  regarded  as  a  pioneer.  So  far 
as  the  obligation  to  pay  rent  is  concerned,  it  seems  to  be  conceded  that  as- 
•ignees  holding  as  tenants  in  common  are  not  tmswerable  for  each  other,  but 
that  each  is  liable  for  rent  of  the  moiety  held  by  him,  and  for  that  only:  Bab' 
tock  V.  ScovUU,  66  111.  461;  Fulton  v.  Stuart,  2  Ohio,  216;  15  Am.  Dec.  642; 
Van  Rensselaer  v.  Jones,  2  Barb.  653. 

Assignee  or  Lease  mat  Terminate  his  Liability  thereunder  by  as- 
signing his  interest,  and  delivering  possession  to  another,  that  the  latter 
may  be  an  insolvent  or  a  beggar:  Johnson  v.  Sherman,  76  Am.  Dec.  481.  An 
assignee  is  answerable  only  for  rents  accruing  and  covenants  broken  while  he 
is  assignee,  and  not  after  he  has  parted  with  his  interest  and  possession: 
Cltiids  v.  Clark,  49  Id.  164,  and  note. 

Interest,  when  Allowable:  See  note  to  Van  Rensselaer  v.  Jewett,  61  Am. 
Dec.  277-279;  De  LarallttU  v.  Wendt,  31  Am.  Rep.  494;  Old  Colony  v.  Milier, 
28  Id.  194;  Wyman  v.  Robinson,  40  Id.  360. 


84  COMNOB  V.  SXAlfLEY.  [CaL 

Connor  v.  Stanley. 

[72  Califobnia,  666.J 

Insanttt. — Belief  in  spiritaaliam  does  not  of  itself  show  insanity,  unless 
it  amonnts  to  a  monomania. 

BaBDEN  or  Pboof  Rests  upon  Onb  Clahono  to  bb  SpnuTUALisTio 
Medium,  to  show  that  a  contract  made  by  him  with  one  having  im- 
plicit belief  in  the  existence  of  the  powers  claimed  by  such  medium 
was  free  from  undue  influence. 

Relation  or  Peculiab  Trust  and  Confidence  Exists  between  As- 
sumed Spiritualistio  Medium  and  a  believer  in  his  alleged  powers, 
which  raises  the  presumption  that  an  advantage  obtained  by  the  former 
over  the  latter  resulted  from  undue  influence. 

Action  to  recover  from  the  defendant,  as  administrator  of 
the  estate  of  William  Jarvis,  the  value  of  certain  bonds  which 
Jarvis  agreed  to  give  to  plaintifif  in  an  antenuptial  contract, 
made  in  anticipation  of  their  marriage.  The  marriage  was 
never  celebrated.     Judgment  for  the  defendant. 

R.  T.  Devlin^  William,  H.  Beatty,  and  A.  P.  Catling  for  the 
appellant. 

A.  C.  Freeman^  O.  E.  Bates,  and  O.  L.  Johnson,  for  the 
respondent. 

By  Court,  Temple,  J.  The  contract  on  which  this  action 
is  founded  is  set  out  in  full  on  the  former  appeal  (65  Cal.  184). 
It  is  there  said  to  be  valid  as  an  antenuptial  contract.  The 
defendant  set  up  as  a  defense  that  at  the  time  the  alleged 
contract  was  made  his  intestate  was  insane  and  incapable  of 
entering  into  a  contract,  and  that  it  was  procured  by  the  use 
of  undue  influence  by  the  plaintifif. 

The  court  found  that  all  the  allegations  of  the  complaint 
were  true,  except  as  to  the  capacity  of  Jarvis  to  contract,  and 
that  all  the  affirmative  matters  set  up  in  the  answer  were  true, 
except  that  plaintiff  and  P.  B.  Nagle  did  not,  nor  did  either  of 
them,  coerce  Jarvis  otherwise  than  by  taking  advantage  of  his 
weak  and  unsound  mind. 

The  findings,  therefore,  plainly  cover  all  the  issues  in  the 
case,  and  the  only  question  for  our  consideration  is,  whether 
there  is  any  evidence  which  could  justify  the  conclusion. 
Upon  this  proposition  there  can  be  no  doubt. 

1.  There  was  evidence  tending  to  prove  insanity  generally, 
and  not  merely  that  he  was  insane  on  the  subject  of  spiritual- 
ism. J.  Miller,  an  intimate  acquaintance,  thought  he  was  in- 
sane.   To  the  same  effect  is  the  testimony  of  Mrs.  A.  Walker^ 


June,  1887.]  Connor  v.  Stanley.  85 

J.  W.  Houston,  S.  B.  Lusk,  and  Lee  Stanley,  and  it  is  shown 
that  plaintiflf  herself  stated  that  she  believed  him  insane. 
And  then  there  is  much  testimony  as  to  facts  which  would 
tend  to  show  an  unsound  mind. 

2.  There  is  much  testimony  tending  to  prove  that  Jarvis 
was  insane  on  the  subject  of  spiritualism.  That  there  is  such 
evidence  is  not  controverted,  but  counsel  indulge  in  a  long 
argument,  and  cite  many  authorities  to  the  point,  that  a  be- 
lief in  spiritualism  does  not  prove  insanity.  As  ^n  abstract 
proposition,  no  doubt  this  is  so.  The  law  pronounces  no  one 
insane  for  mere  religious  belief,  no  matter  how  unreasonable 
it  may  appear  to  the  judge.  But  this  does  not  meet  the  case 
made.  A  belief  in  the  doctrines  maintained  by  the  Metho- 
dists, Presbyterians,  or  the  Catholics  would  not  establish  in- 
sanity. Still,  one  might  be  a  monomaniac  as  to  either  form 
of  religion;  and  so  as  to  spiritualism.  And  that  is  precisely 
the  effect  of  the  great  mass  of  testimony  in  this  case. 

3.  There  is  much  evidence  tending  to  show  undue  influence. 
It  is  established  that  the  relation  between  the  parties  was  con- 
fidential, in  consequence  of  her  claim  to  power  as  a  medium, 
through  which  she  had  great  control  over  him.  This  being 
established,  the  burden  was  cast  upon  her  of  showing  that 
there  was  no  undue  influence.  The  rule  applies  with  peculiar 
force  to  the  relation  of  one  and  his  priest,  confessor,  clergy- 
man, or  spiritual  adviser,  and  certainly  with  no  less  force  to 
the  relation  between  one  who  is  a  firm  believer  in,  not  to  say 
a  monomaniac  upon,  the  subject  of  spiritualism,  and  the 
medium  in  whom  he  has  confidence,  and  upon  whom  he 
habitually  relies. 

The  cases  upon  the  subject  are  numerous,  but  the  law,  so 
far  as  applicable  here,  is  crystallized  in  the  Civil  Code.  Sec- 
tion 2219  provides  that  every  one  who  voluntarily  assumes  a 
relation  of  personal  confidence  with  another  is  a  trustee,  and 
section  2235  raises  the  presumption  that  all  transactions  be- 
tween such  persons  by  which  the  person  trusted  obtains  an 
advantage  are  entered  into  under  undue  influence.  It  becomes 
important,  then,  to  inquire  whether  the  relation  did  exist. 

Jarvis  was  seventy-two  years  old,  feeble  both  mentally  and 
physically.  He  was  a  widower,  his  wife  having  died  in  Au- 
gust, 1881,  a  few  months  before  the  contract  questioned  here 
was  entered  into.  He  had  lived  for  a  great  many  years  at 
Folsom  a  quiet  life,  with  no  family  except  his  wife.  They 
had  had  one  child,  a  daughter,  who  married  the  defendant, 


86  Connor  v.  Stanley.  [Cal. 

and  died  twenty  years  ago,  leaving  two  children.  Jarvis  had 
been  a  music  teacher,  and  had  accumulated  some  property. 
He  was  for  many  years  a  firm  believer  in  spiritualism.  The 
belief  had  grown  upon  him,  until,  in  the  opinion  of  the  wit- 
nesses, it  had  become  a  monomania.  His  mind  would  drift  to 
the  subject  upon  all  occasions.  He  relied  upon  supposed 
spiritual  advice  in  his  business  transactions.  When  warned 
against  trusting  certain  persons,  he  said:  "  It  will  be  all  right 
in  the  next  world;  they  are  spiritualists."  He  sold  a  farm  for 
two  thousand  dollars,  to  be  paid  for  in  installments  of  two 
hundred  dollars  a  year  without  interest.  He  had  been  ofiered 
$250  a  year  rent.  He  said  the  spirits  told  him  he  must  sell; 
that  he  was  governed  entirely  by  the  spirits.  The  purchaser 
was  a  spiritualist.  He  invested  several  thousand  dollars  in 
mines,  under  the  supposed  advice  of  spirits.  Most  of  this 
money  was  lost.  He  offered  a  lady  fifteen  hundred  dollars  to 
attend  seances  and  become  a  medium.  To  another  lady  he 
oflfered  to  convey  a  piece  of  land  if  she  would  become  a  me- 
dium. He  believed  he  could  reform  all  the  convicts  if  he  could 
get  them  to  read  a  spiritualistic  paper.  He  said  he  had  got 
the  right  idea  of  spiritualism,  and  was  going  to  publish  a  work 
which  would  astonish  the  world.  He  admitted  that  he  was 
controlled  by  mediums. 

One  witness  said  he  was  a  mental  wreck  from  the  time  he 
lost  his  daughter,  and  there  is  much  evidence  that  he  became 
still  worse  after  the  death  of  his  wife.  His  conduct  was  very 
strange  during  her  last  illness.  He  did  not  believe  in  giving 
her  medicine  or  nourishment.  The  medium  said  she  would 
die,  and  the  spirits  would  keep  her  until  then.  He  did  not 
wish  a  doctor,  as  the  spirits  would  do  nothing  if  he  had  one. 
He  objected  to  cooking  being  done  in  the  house;  the  smell 
would  keep  the  spirits  out.  The  doors  and  windows  must  be 
left  open  so  they  could  come  in.  He  was  angry  when  they 
gave  her  stimulants,  because  if  she  were  to  die  intoxicated 
she  would  remaia  so  in  the  spirit  land.  He  knew  of  one  man 
who  was  killed  while  drunk,  and  who  was  still  drunk  fifteen 
years  after  his  death. 

In  this  condition  of  health,  mental  and  physical,  Jarvis  met 
the  plaintiff.  She  is  said  by  her  counsel  to  be  an  artist,  who 
has  a  studio  in  San  Francisco, — a  highly  educated,  refined,  and 
accomplished  lady.  When  Jarvis  first  made  her  acquaintance 
does  not  definitely  appear,  but  it  was  evidently  shortly  after 
the  death  of  his  wife,  when  he  went  to  consult  her  as  a  medium 


June,  1887.]  CoN^'OR  v.  Stanley.  87 

to  find  out  how  much  money  he  should  give  his  granddaughter 
to  use.  In  February,  after  Mrs.  Jarvis's  death,  plaintifif  was 
giving  seances  at  Folsom.  Jarvis  had  induced  her  to  go  there 
to  be  developed  as  a  medium,  and  gave  her  fifty  dollars  per 
month  to  come.  She  remained  on  these  terms  for  some  three 
months,  giving  seances,  which  were  attended  by  Jarvis,  and  to 
which  he  invited  his  friends.  The  evidence  shows  that  he  had 
the  most  exalted  opinion  of  her  powers  as  a  medium,  and  that 
he  was  much  under  her  control.  He  said  himself  that  she  had 
great  influence  over  him  when  she  was  around.  There  is  evi- 
dence that  plaintiff  herself  said  that  she  believed  that  Jarvis 
was  crazy,  and  a  medium  could  do  anything  in  the  world  with 
him. 

We  think  this  is  suflBcient  to  show  that  there  was  evidence 
upon  which  the  court  could  find  the  existence  of  a  relation  of 
a  peculiar  ti  ust  and  confidence  between  them,  similar  to  that 
between  a  religious  devotee  and  his  spiritual  adviser,  and  the 
proof  of  which  would  throw  upon  the  plaintiff  the  burden  of 
showing  fair  dealing. 

But  the  record  contains  evidence  of  undue  influence  and 
adverse  pressure.  Mrs.  Walker  testified:  "Speaking  of  the 
time  when  the  contract  that  is  in  suit  here  was  executed,  she 
said  that  they  had  had  trouble  and  had  words.  She  said 
that  she  wished  him  to  settle  something  on  her,  and  he  asked 
her  if  she  was  afraid  that  he  would  not  leave  her  anything,  or 
would  not  leave  her  as  well  off  as  her  other  husband  had  left 
her,  and  she  said  that  she  locked  the  door  and  kept  him  in 
the  room  for  about  two  hours,  and  that  she  put  the  key  in 
her  pocket They  talked  about  the  matter  in  my  pres- 
ence, and  they  both  told  me  that  which  I  have  stated.  She 
said  that  they  finally  came  to  a  settlement,  and  he  agreed  to 
Bettle  something  on  her,  and  she  opened  the  door  and  got  a 
boy  and  sent  him  down  to  Nagle's  oflice,  and  he  came  up  and 
drew  a  draught  of  the  contract  that  day,  and  the  next  day 
she  told  me  that  Jarvis  came  in  and  she  asked  him  if  he 
would  have  a  chair,  and  she  said  he  acted  queerly.  Then  she 
said  that  she  told  him  ho  would  not  have  time  to  sit  down  if 
he  was  going  down  to  keep  his  word  and  sign  that  contract. 
He  asked  her  what  contract,  and  he  said,  *  I  have  made  no 
contract.'  ....  She  said  that  at  that  time  he  acted  as  if  he 
was  either  drugged  or  crazy,  and  that  he  did  not  act  as  if  he 
knew  what  he  was  about,  and  did  not  seem  to  know  that 
het  had  ever  drawn  up  a  contract She  expressed  her- 


88  Connor  v.  Stanley  [Cal. 

self  as  believing  that  he  was  an  old  fool,  and  did  not  know 
what  he  was  about.  She  said  at  that  time  she  believed  that 
he  was  crazy." 

There  was  evidence  on  the  part  of  plaintiflf  contradicting 
some  of  this  evidence,  but  this  only  creates  a  conflict.  If  we 
could  consider  the  testimony,  however,  as  a  trial  court,  we 
could  not  say  that  the  evidence  does  not  sustain  the  finding. 

Judgment  and  order  affirmed. 

McKiNSTRY  and  Paterson,  JJ.,  concurred. 


CoNTKACTS  WITH  Spiritualistio  Medifms.  —  Conveyances  and  gifts  to^ 
contracts  with,  and  devises  in  favor  of  persons  believed  by  the  grantor, 
donor,  or  testator  to  be  spiritualistic  mediums  are  attracting  increased  at- 
tention. In  many  instances,  the  claim  is  made  that  the  grantor  or  donor 
was  insane;  and  in  proof  of  this,  evidence  of  his  belief  in  spiritualism  and 
his  placing  himself  under  the  guidance  of  professed  mediums  is  generally 
oflFered  and  received.  This  evidence  is  commonly  met  with  counter-evi- 
dence, showing  his  general  soundness  of  mind,  his  perfect  memory,  his  busi- 
ness sagacity,  etc.,  and  with  the  argument  that  as  there  are  no  means  of 
testing  the  correctness  of  a  man's  religious  belief,  or  his  belief  with  respect  to 
a  future  state,  there  is  no  evidence  that  his  belief  is  mistaken,  and  certainly 
no  proof  that  before  entertaining  and  acting  upon  such  belief  he  must  have 
become  demented.  The  principal  case  applies  to  the  question  well-settled 
general  principles,  by  treating  spiritualistic  mediums  just  as  other  persons 
are  treated  who  claim  to  exercise  the  functions  of  spiritual  advisers,  or  who, 
from  any  other  special  relation,  are  implicitly  trusted  by  the  persons  with 
whom  they  deal.  The  relations  between  spiritual  teachers  and  their  be- 
lievers is  one  which  is  always  liable  to  lead  to  undue  influence,  and  the  law 
has  for  many  centuries  guarded  against  it  by  imposing  limitations  upon  gifts 
to  the  church.  One  who  is  believed  to  have  the  power  of  communicating 
with  the  spirit  land  is  more  dangerous  than  a  mere  priest;  for  who  could 
refuse  to  yield  to  teachings  which  he  believed  came  from  departed  friends, 
who  possessed  the  secrets  and  the  wisdom  of  our  future  state  ?  We  know 
of  no  instance  in  which  a  contract  between  a  believer  and  a  professed  medium 
has  been  sustained.  The  leading  case  on  this  subject  is  that  of  Lyon  v. 
Home,  L.  R.  6  Eq.  655.  NoUidge  v.  Prince,  2  Giff.  246,  and  Thompson  v. 
Haioha,  14  Fed.  Rep.  902,  are  in  the  same  line.  All  the  cases  show  that  it 
is  incumbent  on  the  person  believed  to  possess  supernatural  powers  to  shoxr 
affirmatively  that  the  contract  or  gift  was  not  the  result  of  his  undue  in- 
fluence. This  is  the  general  rule  with  respect  to  wills  or  gifts  made  in  favor 
of  spiritual  advisers,  even  when  the  testator  or  donor  is  conceded  to  be  of 
sound  mind:  Norton  v.  Riley,  2  Eden,  286;  Thompson  v.  Htffemian,  4  Dm.  & 
War.  285;  Marx  v.  McGlynn,  88  N.  Y.  370.  Any  delusion  or  condition 
which  controls  the  mind  and  dominates  the  will  and  understanding  avoids  a 
contract.  It  is  not  necessary  to  show  that  a  man  is  an  idiot  or  a  maniac  to 
avoid  his  contract:  Jacox  v.  Jacox,  40  Mich.  473;  Crawther  t.  Rowlandson, 
27  Cal.  381;  Bond  v.  Bond,  7  Allen,  1;  see  also  Hides  v.  Hides,  65  How. 
Pr.  17. 

Belief  in  Spiritttalistic  Communications  or  Revelations  is  not  of 
itself  evidence  of  insanity  sufficient  to  avoid  a  will,  unless  it  be  shown 


June,  1887.]  Allison  v.  Thomas.  89 

that  the  testator  anrrendered  hia  own  judgment  and  will,  and  implicitly 
followed  the  supposed  communications  and  directions  from  the  spirit  land; 
Robinson  v.  Adams,  16  Am.  Rep.  473;  see  also  Broum  v.  Ward.  36  Id.  422, 
»nd  note. 


Allison  v,  Thomas. 

[7'2  California,  662.] 

Omission  o»  Initial  Letter  or  Defei^dant's  Middle  Name  in  proceed- 
ings against  him  in  a  justice's  court  is  immaterial. 

Sheriff's  Return  of  Service  of  Summons  may  be  Amended  after  judg- 
ment in  a  justice's  court,  so  as  to  show  jurisdiction  over  the  defendant, 
though  in  the  mean  time  the  defendant  has  conveyed  premises  levied 
upon  under  the  judgment  by  a  quitclaim  deed. 

Quitclaim  Deed,  or  conveyance  of  all  the  grantor's  right,  title,  and  interest, 
vests  in  the  purchaser  only  what  the  grantor  himself  could  claim.  The 
only  exceptions  to  this  rule  are  those  founded  upon  the  recording  acts, 
or  upon  sales  made  under  execution. 

Action  to  quiet  title.  Both  parties  claimed  under  John  C. 
McDonald,  who  was  sued  in  a  justice's  court  by  the  name  of 
John  McDonell.  He  was  served  with  summons  and  copy  of 
complaint,  but  the  sheriflf' s  return  did  not  show  the  service 
of  the  copy  of  complaint.  Judgment  by  default  was  entered, 
and  execution  issued  against  John  McDonald,  under  which  a 
sale  was  made  of  the  land  in  controversy  to  the  defendant,  to 
whom  a  certificate  of  purchase  issued,  and  it  was  duly  re- 
corded. McDonald  then  quitclaimed  to  plaintiff  all  his  right, 
title,  and  interest  in  the  same  lands.  Subsequently  the  sheriff, 
by  permission  of  the  justice,  amended  his  return  of  the  sum- 
mons to  accord  with  the  facts,  and  as  amended,  the  return 
showed  the  service  of  the  copy  of  the  complaint  as  well  as  of 
the  summons.  When  plaintiff  received  his  conveyance,  he 
had  no  knowledge  that  a  copy  of  the  complaint  had  been 
served.  Judgment  for  plaintiff,  and  defendant's  motion  for  a 
new  trial  denied. 

Harris  and  Allen^  for  the  appellants. 
Curtis  and  Otis,  for  the  respondent. 

By  Court,  Temple,  J.  The  omission  of  the  initial  letter  of 
the  middle  name  of  McDonald,  in  the  proceedings  in  the  jus- 
tice's court,  is  a  matter  of  no  consequence,  and  does  not  in 
any  way  affect  the  validity  of  those  proceedings. 

The  rule  undoubtedly  is,  that  the  record  in  the  justice's 
court  must  show  aflBrmatively  jurisdiction  of  the  person,  or 


90  Allison  v.  Thomas.  [Cal. 

the  judgment  will  not  be  valid.  Here  there  was  in  fact  juris- 
diction, but  the  return  of  the  constable  failed  to  show  due 
service.  After  the  judgment  was  entered,  this  record  was 
amended,  and  as  amended,  did  show  jurisdiction.  In  the 
mean  time,  however,  the  land  attached  had  been  sold.  The 
judgment  debtor  had  also  conveyed  to  plaintiff  all  his  right, 
title,  and  interest  in  the  land.  As  against  the  judgment 
debtor  there  was  no  impropriety  in  allowing  an  amendment 
to  the  record  according  to  the  fact.  The  officer  may  always 
amend  his  return  if  there  are  no  intervening  rights  which 
would  be  effected.  And  we  think  it  plain  there  was  no  error 
in  allowing  it  as  to  the  purchaser.  He  purchased  the  right, 
title,  and  interest  of  the  judgment  debtor,  and  took  subject  to 
all  equities  and  secret  defects. 

We  do  not  overlook  the  case  of  Graff  v.  Middleton,  43  Cal. 
340,  in  which  it  was  held  that,  under  the  twenty-sixth  section 
of  the  recording  act,  then  in  force,  a  quitclaim  deed  received 
in  good  faith  and  for  a  valuable  consideration  would  prevail 
over  a  prior  unrecorded  deed.  That  decision  is  made  to  turn 
upon  the  language  of  that  statute  defining  the  word  "  convey- 
ance." This  ruling  was  followed  in  Frey  v.  Clifford,  44  Cal. 
343,  where  the  description  of  the  estate  conveyed  was  "  all  my 
right,  title,  and  interest "  of  the  grantor. 

Unless  these  cases  are  justified  by  the  peculiar  wording  of 
the  statute,  they  seem  to  be  against  the  decisions  elsewhere 
upon  the  subject.  It  has  been  uniformly  held  that  a  convey- 
ance of  the  right,  title,  and  interest  of  the  grantor  vests  in  the 
purchaser  only  what  the  grantor  himself  could  claim,  and  the 
covenants  in  such  deed,  if  there  were  any,  were  limited  to 
the  estate  described:  Coe  v.  Persons  Unknown,  43  Me.  432; 
Blanchard  v.  Brooks,  12  Pick.  47;  Brown  v.  Jackson,  3  Wheat. 
449;  Adams  v.  Cuddy,  13  Pick.  460;  25  Am.  Dec.  330;  Allen 
V.  Holton,  20  Pick.  458;  Sweet  v.  Brown,  12  Met.  175;  45  Am. 
Dec.  243;  Pike  v.  Galvin,  29  Me.  183. 

This  construction  is  in  accord  with  the  obvious  meaning  of 
the  language.  The  grantee  in  such  a  deed  necessarily  takes 
only  what  the  grantor  then  had,  and  subject  to  all  defects 
and  equities  which  could  then  have  been  asserted  against 
the  grantor.  To  this  rule  this  court  has  made  an  exception 
founded  upon  the  recording  act,  and  still  another  has  been 
recognized  in  reference  to  sales  made  by  the  sheriff  under 
execution.  There  the  statute  provides  that  the  purchaser  ac- 
quires all  the  right,  title,  and  interest  of  the  judgment  debtor. 


June,  1887.]  AllIson  v.  Thomas.  9J 

It  has  been  held  that  such  deed  is  good  as  against  a  prior  un- 
recorded deed:  Roberts  v.  Bourne,  23  Me.  165;  39  Am.  Dec. 
614. 

These  are  both  exceptions  to  the  general  rule,  founded  upon 
special  statutory  provisions,  and  rather  tend  to  confirm  the 
rule  than  to  overthrow  it. 

Judgment  reversed  and  cause  remanded. 

McKiNSTBY  and  Patebson,  JJ.,  concurred. 


Amsndmxnt  or  Shshif7's  Betuhn  may  be  made  after  judgment,  to  ahow 
that  process  was  properly  served  on  the  defendant:  Hefflin  v.  MeMirm,  20 
Am.  Dec.  58.  This  question  is  fully  discussed  in  note  to  McUone  t.  Samuel, 
13  Id.  173-181. 

Quttclahc  Deed,  ErrEcr  or:  See  Johsuon  v.  WUUanu,  post,  p.  243,  and  nob*. 


CASES 


VX  THB 


SDPEEME  COTJET  OF  ERRORS 


ov 


CONNECTICUT. 


Phelps  v.  Bates. 

[54  CONKBCnCUT,  11.] 

In  Constbttiko  Will,  Testatoe's  Pakticulak  iNTEirr,  Showst  bt  Singlb 
Pbovision  Standino  bt  Itself,  iiust  Yield  to  the  general  leading 
intent,  as  manifested  in  the  whole  instrument. 

WoED  "or"  should  be  CONSTRUED  "and"  IN  CLAUSE  IN  WiLL,  whereby 
the  testator  gave  his  son  certain  estate,  with  a  gift  over,  if  he  should  die 
"during  minority  or  without  issue";  and  the  estate  would  become  inde« 
feasible  in  the  son,  at  least  as  soon  as  he  attained  his  majority. 

Estate  mat  be  Made  to  Depend  upon  One  op  Two  or  More  Alteena* 
TiVE  Contingencies,  but  the  general  rule  is,  that  when  an  esfiite  de« 
pends  upon  a  double  contingency,  both  must  concur. 

Amicable  suit  for  construction  of  will. 

H.  C.  Robinson,  E.  H,  Hyde,  Jr.,  and  H.  E,  TavnUor^  for  part 
of  the  defendants. 

/.  P.  Andrews  and  C.  H.  Briscoe,  for  the  other  defendants. 

By  Court,  Carpenter,  J.  This  is  a  suit  for  the  construction 
of  a  will.  The  testator  gave  the  bulk  of  his  property  to  his 
son,  then  thirteen  years  old.  The  second  section  of  the  will 
reads  as  follows:  "I  give  and  bequeath  to  my  only  son,  Allie 
Carlos  Bates,  all  my  estate,  both  real  and  personal,  of  every 
name,  kind,  or  description,  except  what  I  hereafter  donate  in 
this  will  to  the  other  legatees,"  Section  3  provides  for  his 
wife;  sections  4  and  5  give  legacies  to  two  sisters;  section  6 
gives  a  legacy  to  a  brother;  section  7  provides  for  a  etep-spn, 
and  makes  an  additional  provision  for  his  wife;  sections  8 

92 


April,  1886  ]  Phelps  v.  Bates.  93 

and  9  provide  ibr  two  other  persons  outside  of  the  family.  The 
will  then  proceeds  as  follows:  — 

"  In  my  extreme  embarrassment  in  making  provision  for 
unforeseen  events,  or  cases  of  death,  I  am  at  a  loss  what  to  do, 
but  decide  upon  the  following,  viz.:  In  the  event  of  the  death 
of  my  son  Allie  C.  during  his  minority,  or  without  family  or 
issue,  the  bank  stock  and  real  estate,  or  home  farm  (so  called), 

and  stock,  and  household  goods,  etc.,  to  go  to ,  and  that  she, 

Hannah  S.,  shall  share  equally  with  my  own  family  heirs  in 
the  division  of  all  of  the  property  which  may  be  left  or  remain 
from  my  son  Allie  C,  viz.:  with  Anson  Bates's  heirs,  Albert 
Bates,  Flora  B.  Metcalfs  heirs,  C.  Laura  Vandorn,  Alfred 
Bates,  and  Mindwell  D.  Smith,  or  the  heirs  of  each  (if  any) 
that  may  be  deceased  at  that  time, — seven  equal  shares  in  all. 
I  do  hereby  direct  the  legacies  in  this  will  to  be  due  six 
months  after  my  decease.  To  be  more  explicit:  I  wish  and 
design  to  give  to  my  wife,  Hannah  S.,  the  use  and  benefit  of 
my  home  farm  during  her  life,  with  the  stock,  tools,  household 
goods,  and  implements  on  and  belonging  to  the  same,  during 
her  life,  in  the  event  of  the  demise  of  my  son,  Allie  C,  during 
bis  minority,  or  without  issue  or  heir,  before  her  decease 
(Hannah  S.),  and  she  to  share  equally  in  fee-simple  with  my 
six  family  heirs  in  all  of  the  rest  of  my  property  given  in  this 
will  to  my  son  Allie  C." 

Under  this  will  two  questions  arise:  1.  What  estate  does  the 
son  take?  and  2.  What  estate  does  the  widow  take?  In  be- 
half of  the  son  it  is  claimed  that  he  takes  an  absolute  estate, 
or  at  least  an  estate  that  becomes  absolute  on  his  attaining 
his  majority.  In  behalf  of  the  *'  family  heirs,"  it  is  contended 
that  he  takes  either  a  life  estate  or  a  defeasible  fee;  and  that 
the  heirs  take  a  remainder,  or  a  gift  by  way  of  an  executory 
devise. 

In  construing  this  will  we  must  bear  in  mind  that  the  gen- 
eral leading  intent  as  therein  manifested  is  evidently  to  give  a 
very  large  portion  of  the  estate  to  the  son.  He  is  first  pro- 
vided for.  The  second  section  gives  an  estate  in  fee-simple: 
White  V.  White,  52  Conn.  518,  That  ought  not  to  be  cut  down 
to  a  less  estate,  unless  we  find  a  clear  intention  that  it  be  done 
in  the  subsequent  parts  of  the  will. 

We  think  it  is  very  clear  that  the  testator  did  not  intend  to 
give  his  son  a  mere  life  estate.  There  are  in  this  will  no  less 
than  five  distinct  life  estates.  In  every  instance  such  an  es- 
tate is  clearly  expressed.     The  testator,  or  whoever  draughted 


94  Phelps  v.  Bates.  [Conn. 

the  will,  knew  what  language  to  use  in  order  to  create  a  life 
estate.  When  that  was  his  intention  it  was  not  left  to  infer- 
ence from  words  of  doubtful  construction.  A  defeasible  fee, 
such  as  is  here  contended  for,  in  the  minds  of  most  men  could 
not  be  distinguished  from  a  life  estate.  It  is  in  effect  only 
an  estate  for  life,  although  it  may  not  technically  be  termed  a 
life  estate.  The  presumption  is,  that  if  the  testator  had  in- 
tended a  defeasible  fee  he  would  have  created  a  life  estate, 
and  thus  have  disposed  of  the  remainder  as  he  did  in  other 
instances.  Instead  of  that  he  used  appropriate  language  to 
give  a  fee. 

The  first  nine  sections  dispose  of  all  his  property.  His  first 
and  leading  intention,  as  well  as  nearly  all  his  minor  and 
subordinate  ones,  are  found  in  them.  If  they  stood  alone,  no 
such  question  as  now  arises  could  have  been  made.  What 
then  did  the  testator  intend  by  that  portion  of  the  will  follow- 
ing the  ninth  section?  That  seems  to  have  been  suggested 
to  him  by  contemplating  the  possibility  of  his  son's  early 
death.  That  that  might  occur  before  the  will  could  take  effect 
was  evidently  in  his  thoughts,  as  he  assumes  that  his  property 
in  that  event  would  go  to  his  own  heirs,  and  provides  that  his 
wife  shall  be  admitted  upon  the  same  footing  with  his  brothers 
and  sisters.  That  assumption  is  inconsistent  with  the  vesting 
of  the  property  in  the  son  by  force  of  the  will;  for  in  that 
case  the  property  would  go  to  the  heirs  of  bis  son  instead  of 
his  own  heirs.  Hence  there  is  some  reason  for  construing  this 
part  of  the  will  as  meaning  the  death  of  his  son  during  his 
own  life.  But  if  for  any  reason  that  is  inadmissible,  then  we 
think  it  must  mean  the  death  of  his  son  during  his  minority 
and  without  heirs  or  issue.  Evidently  he  had  in  mind  his 
death  during  the  life  of  the  mother,  for  the  will  makes  her  as 
one  of  the  heirs.  In  the  seventh  section  the  death  of  the  son 
during  minority  is  spoken  of  by  itself,  and  that  event  is  pro- 
vided for  so  far  as  the  home  farm  is  concerned.  But  in  the 
portion  following  the  ninth  section,  where  only  the  expressions, 
"  or  without  family  or  issue,"  or  "  without  issue  or  heir,"  are 
found,  they  are  coupled  with  the  words,  "  during  his  mi- 
nority." 

On  behalf  of  the  heirs  it  is  contended  that  the  prominent 
and  controlling  intention  of  the  testator  was  to  prevent  his 
property  from  going  out  of  his  own  family.  But  we  think 
that  intention  was  contingent  and  secondary,  while  his  pri- 
mary and  more  important  intention  was  to  provide  liberally 


April,  1886.]  Phelps  v.  Bates.  95 

for  his  son.  All  his  property  is  disposed  of  before  these  ex- 
pressions are  reached.  They  are  used  in  making  some  change 
in  the  disposition  of  his  property  in  a  given  possible  contin- 
gency. Manifestly  he  regarded  the  provision  for  heirs  as  of 
minor  importance.  Until  now  they  are  not  named,  and  here 
they  are  not  named  as  devisees  or  legatees,  but  as  heirs. 
There  is  no  direct  express  gift  to  them.  It  is  only  by  an  im- 
plication from  an  assumption  that  the  property,  in  case  it 
becomes  intestate,  will  go  to  them  as  his  heirs,  that  it  can  be 
said  that  they  are  legatees  at  all.  The  leading  thought  in 
his  mind  seems  to  have  been  to  make  an  additional  provision 
for  his  wife,  rather  than  make  provision  for  his  brothers  and 
sisters;  and  this  he  did  by  making  her  as  one  of  them.  In- 
cidentally and  by  implication  the  provision  is  for  their  bene- 
fit. So  far  as  that  was  intended,  it  was  a  particular  intent, 
the  general  intent  being  in  favor  of  the  wife.  The  former 
cannot  prevail  over  the  latter;  much  less  over  the  general  and 
all-important  intent  to  give  his  property  to  his  son. 

Moreover,  this  was  the  matter  which  caused  him  "  extreme 
embarrassment,"  concerning  which  he  was  "  at  a  loss  what  to 
do."  With  doubt  and  hesitation,  he  finally  decided  "  upon 
the  following,"  etc.  To  call  the  part  of  the  will  thus  produced 
the  important  part,  containing  the  general  intent,  and  construe 
it  as  prevailing  over  the  intent  to  provide  for  his  only  son, — a 
matter  concerning  which  he  was  not  at  a  loss,  did  not  hesitate, 
but  was  clear  and  decided, — would  be  absurd.  We  shall  not 
be  justified  in  inferring  from  a  provision  of  that  character  an 
intention  to  cut  down  an  estate  in  fee  to  a  life  estate,  or  which 
is,  in  effect,  nearly  the  same  thing,  to  a  defeasible  fee.  The 
consequences  of  such  a  construction  would  be  serious.  The 
son  would  be  left  with  nothing  that  he  could  call  his  own  and 
enjoy,  except  the  income;  for  it  will  be  observed  that  every- 
thing given  to  the  son  is  subject  to  this  provision.  That  the 
testator  intended  sucli  a  result  will  not  be  presumed;  and  it 
ought  not  to  be  produced  by  construction,  if  the  will  will  ad- 
mit of  any  other  rational  interpretation.  To  avoid  it,  and  at 
the  same  time  give  effect  to  the  major  intent  apparent  through- 
out tlie  whole  will  to  make  his  son  his  principal  beneficiary, 
we  feel  justified  in  giving  to  the  word  "or"  the  meaning  of 
"and";  so  that  the  will  in  meaning  will  read  "during  his 
minority  and  without  issue."  Such  a  change  gives  eflfect  to 
the  intent  of  the  testator,  and  hence  is  within  the  authorities 
on  that  subject. 


96  Phelps  v.  Bates.  [Conn. 

Again,  suppose  the  son  had  died  while  under  age,  but  leav- 
ing issue.  Then,  if  the  words  are  to  be  taken  literally  and 
disjunctively,  the  issue  would  not  have  taken,  but  the  estate 
would  have  gone  to  collateral  heirs.  Manifestly  that  would 
be  contrary  to  the  intention  of  the  testator.  To  effectuate  that 
intention,  it  would  be  necessary  that  the  words  should  be 
taken  in  a  conjunctive  sense.  And  that  would  require  both 
contingencies  to  concur  in  order  to  give  effect  to  the  limitation 
over.  The  general  rule  is,  that  when  an  estate  depends  upon 
a  double  contingency,  both  must  concur.  Doubtless  an  estate 
may  be  made  to  depend  upon  one  of  two  or  more  alternative 
contingencies,  but  the  supposition  we  have  made  shows  that 
such  was  not  the  meaning  of  the  testator  in  this  case. 

The  case  of  Williarm  v.  Hvibbard,  2  Root,  191,  is  identical 
with  this  case  so  far  as  this  question  is  concerned.  An  estate 
was  given  to  a  grandson,  with  this  provision:  "In  case  the 
grandson  dies  before  he  arrives  at  the  age  of  twenty-one  years, 
or  before  he  has  any  heirs  of  his  body,  then  the  estate  given  to 
him  shall  go  to  the  said  daughters."  It  was  held  that  the 
estate  vested  in  the  grandson  on  arriving  at  the  age  of  twenty- 
one  years,  though  he  died  without  heirs  of  his  body.  The 
court  say:  "  The  dying  without  heirs  is  to  be  understood  to  re- 
late to  the  time  before  he  arrives  at  the  age  of  twenty-one 
years." 

If  the  testator  intended  death  during  his  own  life,  or  death 
during  minority,  then  the  estate  becomes  indefeasible  in  the 
son,  at  least  as  soon  as  he  attains  his  majority. 

The  gift  to  the  wife  in  the  third  section  of  the  will  is  clear, 
and  requires  no  construction.  The  provision  for  her  benefit 
in  the  seventh  section  is  contingent  upon  the  son's  dying  dur- 
ing minority,  and  as  that  event  can  now  never  happen,  we 
have  no  occasion  to  consider  what  interest  she  takes  under 
that  section. 

The  provision  found  in  the  concluding  portion  of  the  will  is 
inoperative,  for  the  reason  given  above. 

The  superior  court  is  advised  to  render  judgment  in  accord- 
ance with  these  views. 


Whebe  Language  or  Testator  in  his  Will  is  Plain  and  Unambiguous, 
Such  Language  must  Govern:  Warner  v.  Miltenberger,  83  Am.  Dec.  573; 
but  the  testator's  intention  will  prevail  over  words  in  his  will;  and  it  is  the 
duty  of  all  courts  to  give  effect  to  such  intention:  Fatherly  v.  Eatherly,  78  Id. 
499,  and  note  505;  Bell  County  v.  Alexander,  73  Id.  268,  and  cases  in  note 
276;  which  is  to  be  gathered  from  the  whole  instrument:  German  v.  German, 


Sept.  1886.]    HoLMAN  v.  Continental  Life  Ins.  Co.         97 

67  Id  451 ;  but  the  intent  of  the  testator  does  not  control  where  it  would  vio- 
late law:  Braltle  Square  CJiurch  v.  Grant,  63  Id.  725. 

Chahoino  One  Word  to  Another  in  Construino  Will:  See  Ooode  v. 
Ooode,  66  Am.  Dec.  635,  note;  construction  of  "and"  for  "or,"  or  vice  versa: 
Janney  v.  Sprigg,  48  Id.  557,  and  note  565. 

Construction  of  Will —  "Dying  without  Issue ":  Matter  qf  New  York 
etc  R.  R.  Co.,  59  Am.  B«p.  478;  Quackenboa  t.  Kingsiand,  55  Id.  771,  and  ex- 
tended note  774. 


HoLMAN  V.  Continental  Life  Ins.  Co. 

[64  Connecticut,  195.1 

LiYX  Insurance — Forfeiture  of  Paid-up  Pouct.  —  A  policy  of  life  in- 
surance provided  that  it  should  become  void  on  failure  to  pay  any  annual 
premium,  or  interest  annually  in  advance  on  any  outstanding  premium 
notes;  but  that,  after  the  payment  of  two  or  more  annual  premiums,  on 
default  in  the  payment  of  any  subsequent  premium,  the  company  would 
convert  the  policy  into  a  "paid-up  "  one  for  as  many  tenth  parts  of  the 
snm  originally  insured  as  there  had  been  complete  annual  payments  when 
default  was  made,  provided  application  was  made  for  such  conversion 
within  one  year  after  default.  The  iilsured  paid  two  annual  premiums, 
a  portion  in  casii,  and  the  balance  in  premium  notes  still  outstanding, 
made  default  in  the  payment  of  the  next  premium,  and  applied  for  a 
"  paid-up  "  policy.  Thereupon  the  company  indorsed  upon  the  policy 
that  it  was  recognized  as  binding  for  two  tenths  thereof,  "  subject  to  the 
terms  and  conditions  expressed  in  the  policy."  Thereafter  the  insured 
paid  the  interest  on  the  outstanding  premium  notes,  annually,  in  ad- 
Tance,  for  two  years,  and  then  ceased  to  pay  the  same.  In  an  action  to 
recover  the  amount  due  on  the  policy,  Jield,  that  the  company's  indorse- 
ment upon  the  policy  was  equivalent  to  a  "paid-up"  policy,  and  that 
the  failure  to  pay  interest  on  the  outstanding  premium  notes  worked  a 
forfeiture  thereof. 

"Paid-up"  Policy  of  Life  Insurance  may  be  Forfeited  by  Non-pay- 
ment of  interest  on  premium  notes,  given  for  premiums  accruing  while 
the  original  policy  remained  in  force. 

Naming  Poucy  of  Insurance  Non-forfeitablb  does  not  render  inappli- 
cable the  rule  that  a  writing  must  be  construed  by  its  terms,  and  if  by 
these  it  is  forfeitable,  a  defense  showing  the  existence  of  facts,  which  by 
these  terms  create  a  forfeiture,  must  be  sustained. 

The  plaintiff  was  the  beneficiary  in  a  policy  of  inBuranca 
upon  the  life  of  W.  W.  Holman.  The  annual  premiums  were 
paid  partly  in  cash  and  partly  in  premium  notes,  the  interest 
of  which  was  payable  annually  in  advance.  After  making 
two  annual  payments  of  the  portions  of  the  premium  due  in 
cash,  he  made  default,  and  applied  for  and  received  a  paid-up 
policy  for  two  hundred  dollars,  with  conditions  as  shown  in 
the  opinion.  The  premium  notes  for  the  first  two  years  re- 
mained outstanding.     Interest  was  paid  on  them  until  1876, 

Am.  St.  K«p.,  V0L.L  — 7 


18  HoLMAN  V.  Continental  Life  Ins.  Co.        [Conn. 

when  default  was  made  in  paying  such  interest,  and  the  ques- 
tion was,  whether  this  default  forfeited  the  policy. 

H.  B.  FreemaUj  for  the  plaintiff. 

T.  M.  Maltbie,  for  the  defendant. 

By  Court,  Loomis,  J.  The  complaint  in  this  case  seeks  to 
recover  the  amount  due  under  a  so-called  "  paid-up "  policy 
of  insurance  on  the  life  of  William  W.  Holman,  for  the  bene- 
fit of  his  wife.  The  demurrer  to  the  defendant's  answer 
raises  the  question  whether  the  defense  therein  set  forth  is 
suflBcient  in  law  to  prevent  a  recovery  by  the  plaintiff,  and 
this  depends  entirely  upon  the  contract  of  the  parties.  By 
the  terms  of  the  contract  as  originally  made,  the  defendant 
was  to  receive  an  annual  premium  of  $108.72  during  the  con- 
tinuance of  the  policy  for  the  term  of  ten  years,  payable,  as 
appears  from  the  margin,  partly  in  cash  and  partly  by  note. 
At  the  end  of  the  term,  or  upon  the  previous  death  of  the  in- 
sured, the  defendant  was  to  pay  one  thousand  dollars,  "  de- 
ducting therefrom  all  indebtedness  to  the  said  company  on 
account  of  this  policy,  if  any,  then  existing,"  subject  to  sundry 
express  conditions  and  agreements  mentioned  in  the  policy, 
the  third  and  fourth  of  which  only  are  involved  in  this  case. 
These  are  as  follows:  — 

"  3.  If  the  said  assured  shall  not  pay  the  said  annual  pre- 
miums on  or  before  noon  of  the  several  days  hereinbefore  men- 
tioned for  the  payment  of  the  same,*  and  the  interest  annually 
in  advance  on  any  outstanding  premium  notes  which  may  be 
given  for  any  portion  thereof,  or  shall  not  pay,  at  maturity, 
any  notes  or  obligations  given  for  the  cash  portion  of  any 
premium  or  part  thereof,  —  then,  and  in  every  such  case,  this 
policy  shall  cease  and  determine,  and  said  company  shall  not 
be  liable  for  the  payment  of  the  sum  insured,  or  any  part 
thereof,  except  as  hereinafter  provided. 

"4.  If,  after  the  receipt  by  the  company  of  two  or  more 
annual  premiums  upon  this  policy,  default  shall  be  made  in 
the  payment  of  any  subsequent  premium  when  due,  then, 
notwithstanding  such  default,  this  company  will  convert  this 
policy  into  a  *  paid-up''  policy  for  as  many  tenth  parts  of  the 
sum  originally  insured  as  there  shall  have  been  complete 
annual  premiums  paid  when  such  default  shall  be  made; 
provided,  that  this  policy  shall  be  transmitted  to  and  received 
by  this  company,  and  application  made  for  such  conversion 
within  one  year  after  such  default." 


Sept.  1886.]    HoLMAN  v.  Continental  Life  Ins.  Co.         99 

The  defendant's  answer,  after  admitting  the  issuing  of  the 
policy,  its  terms  and  demand  and  refusal  to  pay,  as  alleged  in 
the  complaint,  further  alleged  that,  — 

"  2.  On  the  first  day  of  April,  1874,  the  plaintiff  had  paid 
to  the  defendant  in  cash  a  portion  of  two  annual  premiums, 
and  had  given  to  the  defendant  premium  notes  for  the  remain- 
ing portion  of  said  premiums,  which  notes  were  then  and  are 
now  outstanding  and  unpaid. 

•'  3.  Thereafter  the  plaintiff  made  default  in  the  payment 
of  premiums,  and  transmitted  said  policy  to  the  defendant, 
and  with  his  wife,  Rebecca  J.  Holman,  applied  to  the  defend- 
ant to  adjust  the  insurance  under  said  policy,  according  to  the 
stipulations  thereof,  by  reducing  the  amount  thereof  to  two 
hundred  dollars;  and  in  said  application  agreed  to  pay  the 
defendant,  annually,  in  advance,  the  interest  on  all  outstand- 
ing notes  given  in  part  payment  of  annual  premiums. 

"  4.  Thereupon  the  defendant  made  the  following  indorse- 
ment upon  said  policy  of  insurance:  'This  policy  having 
lapsed  after  two  annual  payments  is  hereby  recognized  as 
binding  upon  the  company  for  two  tenths  thereof,  or  two  hun- 
dred dollars,  subject  to  the  terms  and  conditions  expressed  in 
this  policy  and  in  the  quitclaim  to  this  company,  bearing  even 
date  with  this  entry ' ;  and  returned  said  policy  to  the  plaintiff, 
who  accepted  the  same. 

"  5.  Thereafter  the  plaintiff  paid  the  interest  on  said  out- 
standing premium  notes,  annually,  in  advance,  until  the  year 
1876,  when  he  ceased  to  pay  the  same,  and  has  not  since  paid 
the  same. 

"  6.  Said  policy  provided  that  if  the  assured  should  not  pay 
the  interest  annually  in  advance,  on  any  outstanding  pre- 
mium notes  given  for  any  portion  of  the  annual  premiums  on 
said  policy,  then  said  policy  should  cease  and  determine,  and 
said  company  should  not  be  liable  for  the  payment  of  the 
sum  insured  or  any  part  thereof. 

"  7.  By  reason  of  the  failure  and  neglect  of  the  plaintiff  to 
pay  the  interest  annually,  in  advance,  on  said  outstanding 
premium  notes  in  the  year  1876  and  thereafter,  said  policy  of 
insurance  has  ceased  and  determined,  and  the  defendant  is 
not  liable  for  the  payment  of  the  sum  insured,  or  any  part 
thereof." 

The  plaintiff's  reply  was  as  follows:  "The  plaintiff  demurs 
to  the  answer  of  the  defendant,  as  the  Tacts  therein  stated  are 
ineuflBcient  in  the  law,  because  the  paia-up  policy  upon  which 


100  Holm  AN  v.  Continental  Life  Ins.  Co.        [Conn. 

complaint  is  brought  was  non-forfeiting  by  its  terms,  and  con- 
tained no  provision  that  the  failure  to  pay  interest  on  the  out- 
standing premium  notes  should  work  a  forfeiture  of  said 
paid-up  policy,  and  the  same  is  nowhere  averred  in  said 
answer." 

The  special  ground  of  this  demurrer  presents  the  precise 
question  involved  in  the  case,  namely:  Does  the  paid-up 
policy  contain  a  provision  that  the  failure  to  pay  interest  on 
the  outstanding  premium  notes  shall  work  a  forfeiture  of  the 
policy? 

This  question  is  different  from  the  one  considerably  dis- 
cussed in  other  jurisdictions,  namely:  What  will  entitle  the 
insured  to  a  paid-up  policy,  and  what  provisions  as  to  for- 
feiture should  it  contain?  The  parties  have  settled  these 
questions  themselves  by  giving  and  accepting  the  reduced 
insurance;  and  if  the  policy  thus  accepted  contains  a  pro- 
vision whereby  the  failure  to  pay  interest  will  make  it  void, 
then  the  plaintiff  by  his  pleadings  impliedly  admits  that  he 
has  no  case,  even  though  he  would  have  been  entitled  to  a 
different  policy  under  the  original  contract. 

The  new  contract,  whereby  the  insurance  was  reduced  to 
two  hundred  dollars,  states  that  the  company  recognize  the 
policy  binding  for  that  sum,  "  subject  to  the  terms  and  con- 
ditions expressed  in  this  policy  and  in  the  quitclaim  to  this 
company  bearing  even  date  with  this  entry."  This,  in  effect, 
is  the  same  thing  as  a  new  policy,  containing  the  terms  and 
conditions  of  the  old  one  as  far  as  applicable.  Now,  among 
these  conditions  is  the  clear  stipulation  that  "  if  the  assured 
shall  not  pay  the  interest  annually,  in  advance,  on  any  out- 
standing premium  notes,  this  policy  shall  cease  and  deter- 
mine." In  what  manner  did  this  provision  become  eliminated 
from  the  paid-up  policy? 

It  cannot  be  claimed  to  be  inapplicable,  because  there  is  a 
subsisting  obligation  to  pay  this  interest  annually  in  advance, 
recognized  not  only  in  the  original  policy  but  in  the  quitclaim, 
whereby  the  plaintiff  and  his  wife,  when  they  applied  for  the 
reduced  insurance,  made  a  fresh  promise  and  agreement  to 
pay  this  interest,  and  this  quitclaim  is  referred  to  and  made 
part  of  the  new  contract,  and  the  promise  on  the  part  of  the 
company  is  made  subject  to  it  as  a  condition. 

But  a  specious  argument  always  urged  against  this  view  by 
counsel  for  the  insured  and  sometimes  sanctioned  by  courts 
is  founded  upon  what  is  called  the  absurd  paradox  of  forfeiting 


Sept.  1886.]     HoLMAN  v.  Continental  Life  Ins.  Co.        101 

a  non-forfeitable  policy.  The  name  "  non-forfeiting  "  has  un- 
doubtedly been  sometimes  used  to  mislead  applicants  for  in- 
surance, and  some  of  the  cases  refer  to  the  fact  that  agents  for 
insurance  companies  have  made  declarations  and  issued  cir- 
culars to  the  effect  that,  after  the  payment  of  two  annual  pre- 
miums, the  policy  would  be  binding  on  the  company  without 
any  further  attention  on  the  part  of  the  holder. 

But  no  such  fact  appears  in  this  case,  and  upon  the  admit- 
ted facts  it  is  certain  that  the  insured  was  not  misled,  for  he 
voluntarily  ofifered  to  pay  and  did  actually  pay  interest  annu- 
ally in  advance  on  the  paid-up  policy  until  the  year  1876.  It 
is  manifest  that  both  parties  at  the  time,  and  for  several  years 
subsequently,  construed  the  contract  alike.  There  was  no 
trap,  therefore,  into  which  the  plaintiff  was  unwarily  led. 

But  courts  need  not  be  misled  by  mere  appeals  to  preju- 
dice.    The  contract  is  not  to  be  construed  by  its  mere  label, 
F  ^^t  ^y  its  written  terms,  and  upon  referring  to  these  we  see 
I  jit  once  that  the  policy  is  non-forfeitable  only  to  a  very  limited 
'ip^xtent. 
^    No  one  has  ever  claimed  that  it  extends  beyond  the  pay- 
-^ment  of  an  annual  premium  and  interest,  and  even  in  these 
^  respects  it  is  non-forfeitable  only  at  the  option  of  the  holder, 
^  who  must  transmit  the  policy  to  the  company  and  make  ap- 
g^  plication  for  its  conversion  into  a  paid-up  policy  within  one 
•^  year  after  default.     But  a  glance  at  the  policy  will  show  that 
^»  even  after  the  conversion  the  insured  can  have  no  security 
against  forfeiture  except  by  observing  the  conditions.    If  with- 
out the  consent  of  the  company  he  travels  outside  of  the  pre- 
scribed limits  mentioned,  if  he  engages  in  certain  specified 
hazardous  occupations,  if  he  becomes  intemperate  or  is  ad- 
dicted to  vice  of  any  kind  to  the  extent  of  permanent  impair- 
ment of  his  health,  if  he  is  convicted  of  felony,  if  he  dies  by 
his  own  voluntary  act  or  in  consequence  of  a  duel  or  under 
the  sentence  of  the  law,  the  paid-up,  non-forfeitable  policy 
could  not  for  a  moment  avail,  hut  .would  thereby  become  null 
and  void. 

Any  argument,  therefore,  founded  merely  upon  the  use  of 
the  term  "  non-forfeitable  "  is  of  little  weight.  We  must,  as 
in  all  other  cases,  construe  the  contract  by  the  language  used 
in  it.  In  this  case  the  question  is  confined  to  the  language  of 
the  saving  clause,  which  is  the  fourth.  Does  that  save  the  in- 
sured from  the  consequences  of  a  failure  to  pay  interest,  the 
Virac  nu  it  does  in  the  case  of  failure  to  pay  future  annual 


102  HoLMAN  V.  Continental  Life  Ins.  Co.        [Conn. 

premiums?  The  third  clause,  which  it  is  indispensable  to 
consider  in  this  connection,  clearly  specifies  two  distinct  de- 
faults, either  of  which  will  forfeit  the  policy:  1.  Failure  to  pay 
the  annual  premiums  when  due;  and  2.  Failure  to  pay  in- 
terest in  advance  on  outstanding  premium  notes.  So  far  the 
meaning  cannot  be  mistaken.  Now  how  does  the  saving  clause 
which  follows  aflfect  the  question  ?  It  only  relieves  the  insured 
(after  the  payment  of- two  or  more  annual  premiums)  from 
one  of  those  defaults, — "the payment  of  any  subsequent  pre- 
mium when  due."  Not  a  word  is  said  about  interest.  The 
saving  clause,  therefore,  is  not  co-extensive  in  its  operation 
with  the  preceding  forfeiture  clause,  as  it  should  be  to  justify 
the  plaintiff's  construction.  It  is  not  easy  to  conceive  why  the 
parties,  having  clearly  in  mind  the  distinction  between  the 
two  causes  of  forfeiture  mentioned  in  the  third  clause,  should 
in  the  next,  in  terms,  confine  the  relief  to  one  only,  if  they 
intended  to  place  both  on  the  same  ground.  To  accept  the 
plaintiff's  view  would  be  for  the  court  virtually  to  insert  what 
the  parties  omitted.  If  it  be  suggested  that  the  distinction 
between  interest  and  premium  note  was  unnecessary,  the  an- 
swer is  twofold.  In  the  first  place,  the  parties  have  made  such 
a  distinction,  and  presumably  had  it  in  mind  all  through;  and 
in  the  second  place,  the  distinction  is  well  founded,  for  the 
interest  contract  is  not  a  mere  incident  of  the  note,  but  distinct 
from  it;  it  is  payable  in  advance  at  the  beginning  of  each  year, 
without  reference  to  the  time  when  the  notes  become  due. 
And  herein  is  a  distinction  of  some  importance  between  the 
case  at  bar  and  some  of  the  cases  from  other  jurisdictions, 
where  the  premium  note  was  payable  at  a  future  day  with  in- 
terest without  separate  contract  as  to  the  latter.  In  such  case 
the  interest,  being  a  mere  incident  of  the  note,  could  not  be 
separately  recovered,  and  there  would  be  some  reason  for  hold- 
ing that  if  the  note  was  to  be  paid  onl}'  by  deducting  it  from 
the  policy  upon  its  final  adjustment,  the  interest  also  must  fol- 
low the  same  course,  for  it  must  follow  the  note. 

But  is  the  distinction,  which  we  have  assumed  that  the 
policy  in  question  makes,  reasonable  and  just?  The  require- 
ment to  pay  interest  annually  is  indispensable  to  the  success  of 
this  system  of  insurance  where  credit  is  given.  The  annual 
premium  for  the  risk  here  was  $108.72.  The  policy  was  a  par- 
ticipating one,  under  which  the  insured  was  to  receive  his  fair 
proportion  of  dividends.  The  company  could  not  treat  this 
matter  as  entirely  isolated   from   all   other  policies.     Some 


Sept.  1886.]     HoLMAN  v.  Continental  Life  Ins.  Co.        103 

stable  basis  must  be  found  upon  which  an  intelligent  estimate 
could  be  made  of  the  company's  ability  to  pay  losses,  ex- 
penses, and  dividends.  Such  basis  can  only  be  found  in  the 
assumption  that  the  company  will  certainly  receive  the  an- 
nual premium  in  money,  or  a  fair  equivalent  in  the  way  of 
annual  interest.  The  reception  of  the  note,  payable  at  a 
future  day,  cannot  possibly  be  the  same  thing  as  payment  in 
money,  unless  interest  is  paid  on  the  credit  annually.  The 
relief  from  forfeiture,  provided  for  in  the  policy,  is  based  upon 
the  equitable  idea  that  the  reduced  policy  represents  the  pro- 
portionate amount  of  insurance  fully  paid  for  upon  a  cash  basis. 
If  the  insured  wishes  to  be  secure  from  forfeiture,  he  may  pay 
the  annual  premiums  in  money.  If  he  insists  on  a  credit,  he 
may  take  a  reduced  policy,  which  exempts  him  from  the  pay- 
ment of  future  annual  premiums;  but  he  is  still  subject  to  the 
rigorous  condition  to  pay  interest,  or  lose  the  benefit  of  his 
policy. 

In  support  of  these  views,  we  cite  sundry  cases  from  other 
jurisdictions. 

The  case  of  Knickerbocker  Life  Ins.  Co.  v.  Dietz,  52  Md.  16, 
decided  in  April,  1879,  is  very  strong  for  the  defendant.  The 
original  policy,  in  substance,  was  the  same  in  every  respect  as 
the  one  under  consideration.  It  was  dated  May  5,  1868,  and 
under  it  the  insured  paid  premiums  in  cash  and  notes  up  to 
May  5,  1873,  when  he  surrendered  the  policy,  and  obtained  a 
new  one  for  five  tenths  of  the  amount  originally  insured. 
The  second  policy  stated  that  it  was  issued  in  consideration  of 
the  surrender  of  the  previous  one,  and  accepted  by  the  insured 
upon  the  express  condition  and  agreement  that  if  the  interest 
should  not  be  paid  on  or  before  the  day  named,  the  policy 
should  be  null  and  void.  The  interest  was  not  paid  on  the  5th 
of  May,  1874,  and  the  policy  was  canceled  by  the  company. 
Soon  after  this  the  insured  tendered  the  interest  due;  but  the 
company  refused  to  receive  it. 

The  questions  arose  under  a  bill  in  equity,  alleging  that  no 
interest  was  required  to  be  paid  May  5th;  that  the  clause  that 
made  the  new  policy  void  on  non-payment  of  interest  was  in- 
consistent with  the  true  meaning  of  the  contract;  that  the 
stipulation  as  to  forfeiture  was  in  the  nature  of  a  penalty, 
against  which  a  court  of  equity  should  relieve,  and  praying  for 
such  construction  of  the  contract,  and  for  a  decree  for  the 
payment  of  the  amount  of  the  policy  less  the  notes  and  inter- 
eat.    It  will  be  seen  that  the  position  of  the  case  before  a  court 


104  HoLMAN  V.  Continental  Life  Ins.  Co.        [Conn. 

of  equity  was  more  favorable  for  the  claimant  than  that  of  the 
present  case;  but  the  court  held  there  was  no  relief.  Grason, 
J.,  in  delivering  the  opinion  of  the  court,  said:  "The  theory 
on  which  the  amount  of  the  premium  is  fixed  ....  is  that, 
assuming  that  a  man  of  a  given  age  has  a  prospect  of  living  a 
certain  number  of  years,  as  shown  by  experience  and  observa- 
tion, the  premium  charged  is  such  a  sum  as,  invested  annually 
at  a  certain  rate  of  interest  and  compounded,  will,  at  the  ex- 
piration of  that  time,  amount  to  enough  to  pay  the  policy  and 
cover  the  expense  of  the  company.  To  accomplish  this  re- 
sult, the  premium  must  be  punctually  paid  and  invested,  and 
the  interest  reinvested  at  the  assumed  rate.  Otherwise,  the 
ability  of  the  company  to  pay  the  policy,  instead  of  being  a 
matter  of  reasonable  certainty,  becomes  a  mere  matter  of 
chance,  the  business  of  life  insurance  ceases  to  have  any 
Bcientific  or  accurate  basis,  and  a  policy  of  insurance  becomes 
a  mere  wager  on  the  life  of  its  holder.  The  prompt  payment 
of  interest  on  premium  notes  is  as  necessary  to  the  successful 
working  of  an  insurance  company,  as  well  as  to  the  security 
of  the  insured,  as  are  the  payment  of  the  premium  notes 
themselves.  If  one  policy-holder  can  fail  to  pay  his  interest, 
any  number  of  them  may  do  the  same,  and  the  ruin  of  the 
company  would  be  the  inevitable  result.  The  time  for  the 
payment  of  interest  on  premium  notes  is  of  the  essence  of  con- 
tracts of  insurance." 

The  case  of  Knickerbocker  Ins.  Co.  v.  Harlan,  56  Miss.  512, 
decided  in  January,  1879,  was  an  action  on  a  paid-up  policy, 
which  recited  that  it  was  issued  in  consideration  of  the  sur- 
render of  the  original  policy  (the  provisions  of  which- were 
similar  to  those  in  the  case  at  bar),  and  which  stipulated  that 
if  the  interest  on  the  premium  note  was  not  paid  before  a 
specified  day,  the  policy  should  be  null  and  void.  The  com- 
pany pleaded  the  forfeiture  of  the  paid-up  policy  by  reason  of 
the  non-payment  of  interest;  to  which  plea  the  plaintiff  de- 
murred, precisely  as  in  the  case  at  bar.  The  court  below  sus- 
tained the  demurrer  upon  precisely  the  same  arguments  as  are 
urged  in  behalf  of  the  plaintiff*  in  the  present  case,  but  the 
judgment  was  reversed  in  the  supreme  court,  mainly  upon  the 
ground  that,  under  a  proper  construction  of  the  new  policy, 
the  right  to  recover  the  sum  assured  by  it  was  to  be  earned 
only  by  the  prompt  payment  in  future  of  the  interest  on  the 
premium  note,  and  that  it  made  no  difi*erence  that  the  amount 
of  the  note  was  already  due  the  company  on  the  old  policy. 


Sept.  1886.]     HoLMAN  v.  Continental  Life  Ins.  Co.        105 

In  Alabama  Gold  Life  Ins.  Co.  v.  Thomas,  74  Ala.  578,  de- 
cided in  December,  1883,  the  action  was  upon  a  paid-up  policy, 
as  contained  in  an  indorsement  upon  the  original  policy,  the 
terms  of  which  were  as  follows:  "In  consideration  of  the  pay- 
ment on  the  within  policy  of  four  annual  premiums,  less  note 
for  $169.20,  given  for  balance  due  on  premium  loans  to  No- 
vember 11,  1872,  said  policy  is  entitled  at  maturity  to  a  paid- 
up  value  of  four  tenths  of  the  sum  insured,  subject  to  deducting 
note  above  described,  interest  upon  which  is  payable  annually 
in  advance."  It  was  held  that  the  indorsement  was  to  be  con- 
strued, together  with  the  original  policy,  as  constituting  one 
contract,  and  that  thereby  the  parties  made  a  clear  agreement 
that  the  policy  should  be  void  in  the  event  of  the  failure  to 
pay  interest.  It  was  held,  as  in  the  Maryland  case  before 
cited,  that  "  the  payment  of  interest  was  of  the  essence  of  the 
contract;  that  the  calculations  of  insurance  actuaries  fixing 
the  rates  of  insurance  are  based  on  the  theory  of  prompt  pay- 
ment, 60  as  to  aflford  opportunity  for  such  reinvestment  as  to 
reap  the  fruits  of  compound  interest  upon  the  company's  mon- 
eyed capital." 

Insurance  Co.  v.  Robinson,  40  Ohio  St.  270,  was  an  action 
based  on  the  refusal  of  the  company  to  grant  an  application 
for  a  paid-up  policy  pursuant  to  the  provisions  of  a  policy  con- 
taining provisions  identical  with  the  one  at  bar,  so  that  this 
case  presents  the  question  as  to  the  rights  of  the  parties  under 
a  non-forfeiting  policy  like  the  one  in  this  case  prior  to  the  in- 
dorsement made  upon  it.  The  default  on  the  part  of  the 
insured  was  simply  as  to  interest  on  the  premium  notes.  He 
had  paid  previously  four  annual  premiums,  part  in  cash  and 
part  by  note,  in  the  manner  provided.  Granger,  C.  J.,  in  de- 
livering the  opinion  of  the  court,  said:  "The  third  condition 
before  us  is  plain.  It  clearly  states  that  upon  a  failure  to  pay 
the  interest  in  advance,  the  policy  should  be  void.  The  fifth 
adds,  that  in  such  case,  all  payments  thereon,  and  all  divi- 
dends and  credits  accruing  therefrom,  shall  be  forfeited  to  the 
company.  But  the  insured  claims  that  the  fourth  condition 
modifies  the  third.  This  fourth  condition  makes  no  reference 
to  interest,  either  expressly  or  by  reasonable  implication. 
Having  failed  to  pay  the  interest  due  on  four  notes,  he  in 
efiect  was  in  default  for  a  part  of  each  of  four  annual  pre- 
miums, besides  the  one  that  became  due  on  March  7,  1876. 
This  interest  formed  no  part  of  the  annual  premium  due  on 
that  day.     Its  punctual  payment  was  necessary  to  complete 


106  HoLMAN  V.  Continental  Life  Ins.  Co.        [Conn. 

the  payment  of  the  premiums  due  in  the  four  preceding  years. 
....  We  are  unwilling  to  so  construe  a  stipulation  worded  so 
plainly,  and  with  such  evident  care,  as  to  mako  of  no  moment 
a  default  which  the  third  condition  declared  of  enough  impor- 
tance to  destroy  the  life  of  the  policy." 

In  Attorney'General  v.  North  American  Life  Ins.  Co.,  82  N.  Y. 
172,  decided  in  September,  1880,  the  question  arose  in  review- 
ing the  decision  of  a  referee  appointed  to  adjust  the  claims 
against  an  insolvent  life  insurance  company  in  the  hands  of  a 
receiver.  It  appeared  that  in  lieu  of  certain  policies  upon 
which  notes  had  been  given  for  part  payment  of  annual  pre- 
miums, paid-up  policies  had  been  issued  containing  a  pro- 
vision that,  in  case  the  interest  should  not  be  paid  as  agreed, 
the  policies  should  become  void.  Where  there  was  such  de- 
fault in  the  payment  of  interest,  the  referee  rejected  the 
claims,  and  the  court  of  appeals  unanimously  sustained  the 
ruling.  Earl,  J.,  in  delivering  the  opinion,  in  answer  to 
the  claim  that  the  condition  relied  upon  by  the  insurance 
company  was  unconscionable,  and  that  a  case  of  forfeiture 
was  presented  against  which  a  court  of  equity  should  relieve, 
said,  among  other  things:  "  It  was  a  contract  between  the  par- 
ties that  these  policies  should  be  carried  only  so  long  as  inter- 
est should  be  promptly  paid  upon  the  notes;  and  if  not  paid, 
that  the  company  should  cease  to  be  liable The  pro- 
vision is  not  an  unusual  one Here  was  an  insurance 

company  doing  business  throughout  the  country.  Prompt 
payment  of  its  obligations  was  deemed  important  to  it.  If 
premiums  to  such  an  insurance  company  are  not  promptly 
paid,  it  may  be  agreed  that  the  policy  may  be  forfeited.  If 
notes  be  taken  for  premiums,  payable  at  a  definite  time,  the 
policy  may  be  avoided  for  non-payment.  If  notes  be  taken 
which  are  to  run  to  the  maturity  of  the  policy  and  then  be 
adjusted,  the  policy  may  be  avoided  for  non-payment  of  the  in- 
terest. All  these  cases  stand  upon  the  same  footing,  and  a 
court  of  equity  can,  upon  principle,  no  more  relieve  against  a 
forfeiture  in  one  of  them  than  in  either  of  the  others.  The 
case  of  the  claimants  may  be  treated  as  if  the  interest  repre- 
sented premiums  to  be  paid  during  the  running  of  the  poli- 
cies  There  is  much  authority  sustaining  the  decision  of 

the  referee:  Anderson  v.  St.  Louis  Mut.  Life  Ins.  Co.,  5  Bigelow's 
Ins.  Cas.  527;  Martin  v.  jEtna  Life  Ins.  Co.,  5  Id.  514;  Patch 
v.  Phcenix  Mut.  Life  Ins.  Co.,  44  Vt.  481;  Knickerboclcer  Life  Ins. 
Co.  V.  Harlan,  8  Ins.  Law  J.  349;  Nettleton  v.  St.  Louis  Life  Ins. 


Sept.  18S6.]     Holm  AN  v.  Continental  Life  Ins.  Co.        107 

Co.y  6  Id.  426;  Smith  v.  St.  Louis  Mut.  Life  Ins.  Co.,  2  Tenn.  Ch. 
742." 

Patch  and  Wife  v.  Phoenix  Mut.  Life  Ins.  Co.,  44  Vt.  481,  de- 
cided in  1872,  was  an  action  of  assumpsit  upon  a  paid-up 
policy  issued  in  exchange  for  an  endowment  policy  upon 
which  two  annual  premiums  had  been  paid,  partly  by  two 
notes.  The  exchange  was  made  pursuant  to  a  memorandum 
on  the  back  of  the  first  policy,  to  the  effect  that  the  company 
would  purchase  any  of  its  policies  upon  which  two  annual 
premiums  had  been  paid,  and  issue  a  new  policy  for  the  equi- 
table value  of  the  policy  surrendered,  "thus  making  all  policies 
non-forfeitable."  On  the  margin  of  the  paid-up  policy  was  this 
statement:  "  This  policy  is  conditional  on  the  interest  on  two 
notes  given  in  part  payment  for  two  premiums  paid  on 
No.  10,603,  being  paid  in  advance."  Pierpont,  C.  J.,  in  de- 
livering the  opinion,  among  other  things,  said:  "The  interest 
upon  the  notes,  by  their  terms,  is  to  be  paid  annually,  and  it 
is  such  interest  that  the  memorandum  refers  to  and  requires 
to  be  paid  in  advance.  Any  other  construction  would  be  a 
manifest  violation  of  the  meaning  and  intent  of  the  parties  to 
this  contract.  The  defendant  having  taken  the  notes  in  the 
place  of  the  money,  it  could  not  reasonably  be  expected  that 
the  defendant  would  do  less  than  to  secure  the  payment  of 
the  interest  thereon,  by  making  the  new  policy  dependent 
upon  its  payment.  Treating  the  memorandum  as  a  part  of 
the  policy,  and  the  whole  to  be  considered  the  same  as  though 
it  was  included  in  the  body  of  the  instrument,  the  interest 
upon  the  notes  becomes  practically  a  premium  upon  the  pol- 
icy, payable  annually  in  advance;  and  on  failure  to  pay  the 
same,  the  company  ceases  to  l>e  liable,  and  the  policy  is  for- 
feited." 

Russum  V.  St.  Louis  Mut.  Life  Ins.  Co.,  1  Mo.  App.  228,  de- 
cided February  28,  1876,  was  an  action  on  the  original  policy, 
conditioned, — 1.  That  default  in  the  payment  of  future  annual 
premiums  should  not  avoid,  but  it  should  be  proportionately 
reduced;  2.  That  if  the  insured  should  fail  to  pay  annually 
in  advance  the  interest  on  premium  notes  the  policy  should  be 
void.  Gant,  P.  J.,  in  delivering  the  opinion  of  the  court,  said: 
"  If  the  insured  had  paid  the  interest  on  his  note  on  Decem- 
ber 2,  1871,  he  would,  we  think,  have  been  entitled  to  recover 
two  tenths  of  the  sum  insured,  deducting  the  unpaid  note. 
Having  failed  to  make  that  payment,  the  policy  is  forfeited 
and  the  company  discharged.      We  think  it  impossible  to 


108  HoLMAN  V,  Continental  Life  Ins.  Co.        [Conn. 

escape  this  conclusion It  is  urged  that  the  two  pro- 
visions of  this  policy  are  inconsistent  and  contradictory,  and 
that  the  one  which  leads  to  a  forfeiture  must  be  rejected;  but 

the  clauses  are  not  inconsistent All  that  is  needed  is 

for  the  insured  to  bring  himself  within  the  terms  of  both. 
The  first  is  intended  to  save  a  forfeiture,  which  generally 
would  be  incurred  by  the  failure  to  pay  the  annual  premium. 
To  this  extent  it  is  a  privilege  or  advantage  to  the  assured. 
The  second  proviso  insists  upon  rigorous  conditions, — in  re- 
spect of  what?  Only  of  so  much  of  any  unpaid  premium  as 
the  assured,  instead  of  pa3ring  in  cash,  takes  the  indulgence  of 
only  paying  interest  on  at  six  per  cent.  If  he  does  not  wish 
to  incur  the  hazard  of  a  forfeiture  on  account  of  this  part  of 
the  premium,  his  remedy  is  easy;  he  can  presently  pay  his 
note  for  the  premium,  and  without  more,  he  has  a  paid-up, 
non-forfeitable  policy  for  a  fixed  portion  of  the  sum  contem- 
plated by  the  instrument  when  originally  issued.  If  he 
wishes  instead  of  this  to  take  the  chances  of  gain,  he  must 
at  the  same  time  incur  the  hazard  of  loss,  and  cannot  com- 
plain if  he  be  held  to  the  terms  of  the  contract  he  has  deliber- 
ately made." 

Other  pertinent  cases  might  be  cited,  but  these  will  sufl&ce 
to  show  that  the  views  of  the  majority  of  this  court  have  a 
very  strong  support  in  other  jurisdictions;  and  while  we  con- 
cede that  the  opposing  views  of  the  plaintifif  are  sustained  by 
some  courts  entitled  to  very  great  respect,  we  think  the  weight 
of  judicial  authority  is  the  other  way. 

The  first  case  cited  in  behalf  of  the  plaintifi",  to  which  we 
will  refer,  is  Fithian  v.  North  Western  Life  Ins.  Co.,  4  Mo.  App. 
386,  decided  October  23,  1877,  by  the  same  court  that  decided 
Russum  V.  St.  Louis  Mut.  Fire  Ins.  Co.,  supra,  the  year  pre- 
vious. It  was  held  that  non-payment  of  interest  did  not  forfeit 
the  policy  in  that  case,  and  some  of  the  reasoning  at  first 
blush  seems  different  from  that  in  the  first  case;  but  Lewis,  J., 
who  delivered  the  opinion,  concurred  in  the  previous  one,  and 
no  allusion  whatever  is  made  to  the  other  case.  It  would 
seem  improbable  that  it  was  the  intention  of  the  court  to 
overrule  the  first  case,  or  that  it  was  considered  inconsistent 
with  the  last  one,  and  upon  examination  of  the  policy  we  see 
good  ground  for  a  distinction.  The  first  stipulation  was,  that 
in  case  of  default  the  company  would  pay  as  many  tenths  of 
the  original  sum  as  there  should  have  been  complete  annual 
premiums  paid ;  then  followed  the  provision,  —  "If  said  pre- 


Sept.  1886.]     Holm  AN  v.  Continental  Life  Ins.  Co.        109 

miums,  or  the  interest  upon  any  note  given  for  premiums, 
fihall  not  be  paid  on,  etc.,  ....  then  in  every  such  case  the 
company  shall  not  be  liable  for  the  payment  of  the  whole 
sum  assured,  and  for  such  part  only  as  is  expressly  stipulated 
above."  Here  both  notes  and  interest  are  put  on  the  same 
ground,  showing  that  no  distinction  was  intended,  and  the 
company  in  terms  is  made  liable  as  stipulated, — that  is,  for 
BO  many  tenths  of  the  original  sum  insured;  and  there  were 
other  provisions  in  the  policy  adverted  to  in  the  opinion  show- 
ing that  no  forfeiture  was  to  arise  because  of  any  default  in 
payments,  whether  of  notes  or  interest.  This  case,  it  will 
be  seen,  may  therefore  be  widely  distinguished  from  the  one 
at  bar,  in  that  the  policy  in  terms  secures  a  proportionate  part 
against  forfeiture;  while  here,  as  we  have  seen,  it  is  expressly 
forfeited  for  non-payment  of  interest,  with  no  relief  provided. 

The  same  distinction  may  also  be  made  in  regard  to  the 
cases  of  Hull  v.  Northwestern  Mut.  Life  Ins.  Co.,  39  Wis.  406; 
Northwestern  Mut.  Life  Ins.  Co.  v.Xittle,  56  Ind.  504;  Ohde  v. 
Northwestern  Life  Ins.  Co.,  40  Iowa,  357;  Symonds  v.  North- 
western  Life  Ins.  Co.,  23  Minn.  491;  Northwestern  Mut.  Life 
Ins.  Co.  v.  Ross,  63  Ga.  199;  and  Northwestern  Mut.  Life  Ins. 
Co.  V.  Bonner,  36  Ohio  St.  51.  In  all  these  cases  the  policies 
were  the  same  as  in  the  case  cited  from  4  Mo.  App.,  supra. 

Of  all  the  cases  therefore  cited  in  behalf  of  the  plaintiff,  only 
two  remain  which  are  weighty  in  the  opposing  scale.  The 
first  and  the  stronger  case  is  that  of  Coioles  v.  Continental  Life 
Int.  Co.  (the  present  defendant),  decided  July  31, 1855,  by  the 
supreme  court  of  New  Hampshire,  where  the  action  was  assuvip' 
eit  on  a  paid-up  policy  identical  in  its  provisions  with  the  one 
now  in  suit,  and  where  the  defense  was  the  same.  It  is,  there- 
fore, irreconcilably  in  conflict  with  the  positions  we  have 
taken. 

In  the  brief  but  forcible  opinion  delivered  by  Doe,  C.  J., 
there  is  no  reference  to  the  authorities.  The  basis  upon  which 
the  reasoning  rests  will  fully  appear  from  the  following  quota- 
tion: "A  significant  clause  of  the  contract  is  a  conspicuous 
marginal  advertisement  describing  the  writing  as  a  '  non-for- 
feitable  endowment  policy.'  The  forfeiture  clause  qualified  by 
the  provision  for  a  '  paid-up '  policy  docs  not  mean  that  the 
reduced  '  paid-up,'  '  non-forfeiture '  insurance  is  annually  for- 
feitable for  non-payment.  The  strict  construction  for  which 
the  defendant  contends  would  leave  the  insured  exposed  to  a 
danger  from  which  the  reduction  and  conversion  of  the  policy 


110  Holm  AN  v.  Continental  Life  Ins.  Co.        [Conn. 

would  be  generally  understood  to  relieve  him;  and  it  is  not  to 
be  presumed  that  the  document  was  ingeniously  drawn  up  for 
the  purpose  of  fraudulently  obtaining  money  by  non-forfeiture 
pretenses.  All  parts  of  the  contract  taken  together  can  be, 
and  should  be,  reasonably  and  liberally  understood  as  designed 
to  accomplish  the  scheme  of  non -forfeiture  for  non-payment, 
which  men  in  general  would  believe  the  policy  invited  them 
to  accept." 

The  other  case  is  Bruce  v.  Continental  Life  Ins.  Co.,  58  Vt. 
253,  decided  February  26,  1886,  by  the  supreme  court  of  Ver- 
mont, and  reported  in  the  Eastern  Reporter,  vol.  4,  No.  6,  p.  452. 
This  was  a  bill  in  chancery  to  compel  the  delivery  of  a  paid-up 
policy,  and  payment  of  the  amount  due.  The  court  gave  the 
same  construction  to  the  original  policy  as  was  given  in  the 
New  Hampshire  case,  but  certain  circulars  issued  by  the  com- 
pany, and  the  fact  found  in  the  case  that  the  company  re- 
garded the  premium  notes  as  given  for  a  loan  of  money,  seem 
to  have  been  influential  with  the  court. 

This  case,  however,  recognizes  a  distinction  already  adverted 
to,  and  which  we  think  applicable  to  the  case  now  under  con- 
sideration. Powers,  J.,  in  giving  the  opinion,  said:  "  The  case 
at  bar  is  unlike  Patch  v.  Phoenix  etc.  Ins.  Co.,  44  Vt.  481. 
There  the  question  arose  upon  the  construction  of  a  paid-up 
policy,  issued  in  place  of  a  former  one  surrendered,  which  con- 
tained an  express  stipulation  that  certain  sums  of  interest 
should  be  paid  in  advance.  The  action  was  assumpsit  on  the 
paid-up  policy,  and  no  question  was  made  whether  the  paid-up 
policy  was  in  such  form  as  the  insured  was  entitled  to.  Such 
as  it  was  he  accepted  it,  and  the  action  was  upon  it  in  the  form 
it  was  issued  and  accepted." 

It  is  manifest  that  our  argument  in  some  particulars  has 
gone  beyond  the  strict  requirements  of  the  present  case,  and 
has  tended  in  some  measure  to  show  that  the  form  of  paid-up 
policy  issued  to  the  plaintiff,  and  accepted  by  him,  was  in  ac- 
cordance with  the  original  policy;  but  in  view  of  the  adverse 
construction  of  the  same  kind  of  policy  by  the  courts  of  New 
Hampshire  and  Vermont,  and  the  want  of  unanimity  among 
the  members  of  this  court  upon  this  subject,  we  think  it  best  to 
leave  that  part  of  the  discussion  an  open  question  for  future 
consideration  should  the  matter  again  arise,  and  to  restrict  the 
present  decision  to  the  precise  question  stated  at  the  opening 
of  our  discussion,  whether  the  paid-up  policy  involved  in  this 


Nov.  1886.]  McFarland  v.  Sikes.  Ill 

suit  contains  a  provision  whereby  the  failure  to  pay  interest 
has  accomplished  the  forfeiture  of  the  policy. 

We  advise  that  the  answer  of  the  defendant  to  the  complaint 
is  sufficient. 

Park,  C.  J.,  and  Pardee,  J.,  concurred. 
Carpenter  and  Granger,  JJ.,  dissented. 


Waiver  by  Insurance  Company  of  Condition  respectino  Pa's  mint  or 
Premium  Note:  See  Hodsdon  v.  Guardian  L.  Ins.  Co.,  93  Am.  Dec.  73,  and 
note  75;  Wearvin  v.  Universal  L.  Ins.  Co.,  39  Am.  Rep.  657;  Alexander  v.  In- 
surance Co.,  58  Id.  869;  Murphy  v.  Soutliern  L.  Ins.  Co.,  27  Id,  761;  Mutual 
L.  Ins.  Co.  v.  FrencJi,  27  Id.  443;  Pomeroy  v.  Insurance  etc.  Co.,  59  Id.  144; 
Cotton  States  L.  Ins.  Co.  v,  Lester,  35  Id.  122;  Prentice  v.  Knickerbocker  L.  Ins. 
Co.,  33  Id.  651;  Viele  v.  Oermania  Ins.  Co.,  96  Am.  Dec.  83. 

Insurance  Company  is  Estopped  to  Insist  on  Forfeiturb  for  Delay  in 
Payment  of  Premiums,  if  its  course  of  conduct  had  led  the  insurer  to  believe 
that  the  premiums  would  be  received  after  the  appointed  day:  Appleion  v. 
Pluxnix  etc.  Ins.  Co.,  47  Am.  Rep.  220;  Helme  v.  PJdladelphia  Ins.  Co.,  100  • 
Am.  Dec.  621;  and  see  Lyons  v.  Insurance  Co.,  54  Am.  Rep.  354. 

Policy  Forfeited  by  Non-payment  of  Premium  is  not  Reinstated  by 
mere  demand  of  payment  of  the  premium:  CoJien  v.  Continental  Fire  Ins.  Co., 
60  Am.  Rep.  24. 


MoFaELAND    V,    SiKES. 

[54  CONNKCTICUT,  250.] 

RiTLS  THAT  Parol  Evidence  is  Inadmissible  to  Contradict  or  Vary 
RiTTXN  Contract  applies  only  to  a  written  contract  which  is  in  force 
as  a  binding  obligation. 

Written  Contract  may  be  Delivered  upon  Condition,  but  it  does  not 
become  a  binding  obligation  until  the  condition  upon  which  its  delivery 
depends  has  been  fulfilled. 

P088B8ION  OF  Note  by  Payee  is  Prima  Facis  Evidencs  that  It  had 
BEEN  Delivered,  but  the  fact  may  be  shown  to  be  otherwise  by  parol 
evidence.  Such  evidence  does  not  contradict  the  note,  or  seek  to  vary 
its  terms,  but  merely  goes  to  the  point  of  its  non-delivery. 

Parol  Evidence  is  Admissible,  in  Action  on  Promissory  Note,  to  show 
that  it  was  delivered  by  the  defendant  to  the  plaintiff  on  condition  that 
it  should  be  returned  to  the  defendant  on  a  certain  day,  if  demanded, 
and  that  it  was  so  demanded,  but  the  plaintiff  refused  to  surrender  it. 


Action  on  a  promissory  note.    The  opinion  states  the  case. 

C.  II.  BrUcoe,  J.  P.  Andrews,  and  D.  Marcy,  for  the  ap- 
ellant. 

J.  L.  Hunter  and  B.  II.  Dill,  for  the  appellee. 


112  McFarland  v.  Sikes.  [Conn. 

By  Court,  Park,  C.  J.  This  is  a  suit  upon  a  note  of  three 
hundred  dollars.  On  the  trial  in  the  court  below  the  defend- 
ant offered  evidence  to  prove,  and  claimed  to  have  proved, 
that  previously  to  the  execution  and  delivery  of  the  note  the 
plaintiff,  who  was  a  grand  juror  of  the  town  of  Ellington, 
where  the  defendant  resided,  and  was  acting  as  the  attorney 
of  one  Mary  Quinn,  accused  the  defendant  of  having  made  an 
assault  upon  the  person  of  the  said  Mary,  and  threatened  him 
with  a  criminal  prosecution  unless  he  settled  with  her  for  the 
injury;  that  the  defendant  thereupon  admitted  that  he  had 
done  wrong  in  the  matter,  and  offered  one  hundred  dollars  to 
eettle  it;  that  the  plaintiff  demanded  three  hundred  dollars, 
which  the  defendant  was  unwilling  to  pay;  that  the  defend- 
ant was  without  counsel,  and  asked  to  be  allowed  till  the  fol- 
lowing Tuesday  to  consider  the  matter,  and  offered  to  give 
his  note  for  three  hundred  dollars,  to  be  held  by  the  plaintiff 
till  then,  and  if  he  did  not  then  appear,  to  be  held  by  the 
plaintiff  as  a  settlement  for  the  injury  to  the  said  Mary,  but 
if  he  should  appear,  to  be  returned  to  him  to  be  canceled; 
that  thereupon  the  plaintiff  wrote  the  note  in  suit,  which  the 
defendant  executed  and  delivered  to  the  plaintiff,  to  be  held  by 
him  upon  the  conditions  stated;  and  that  the  defendant  at 
the  same  time  declared  that  he  should  appear  and  demand  a 
return  of  the  note.  The  defendant  also  offered  evidence  that 
on  the  following  Tuesday  he  appeared  before  the  parties  and 
demanded  the  return  of  the  note,  but  that  the  plaintiff  refused 
to  surrender  it. 

With  reference  to  this  evidence,  the  defendant  requested  the 
court  to  charge  the  jury  "  that  if  the  note  was  delivered  to  the 
plaintiff  with  the  understanding  between  him  and  the  defend- 
ant that  it  was  to  be  delivered  up  to  the  latter  on  his  demand 
on  the  Tuesday  following,  and  the  defendant  demanded  its 
return  on  that  day,  the  plaintiff  cannot  recover,  and  the  ver- 
dict must  be  for  the  defendant.''  The  court  did  not  so  charge 
the  jury,  but  substantially  that  if  they  should  find  all  the 
facts  claimed  by  the  defendant  to  be  proved,  they  did  not  con- 
stitute a  defense  to  the  action. 

We  think  the  court  erred  in  refusing  to  charge  as  requested, 
and  in  charging  as  it  did.  The  error  was  in  applying  to  the 
case  the  familiar  and  well-established  rule  that  parol  evidence 
is  inadmissible  to  contradict  or  vary  a  written  contract. 

A  written  contract  must  be  in  force  as  a  binding  obligation 
to  make  it  subject  to  this  rule.     Such  a  contract  cannot  be- 


Nov.  1886.]  McFarland  v.  Sizes.  113 

come  a  binding  obligation  until  it  has  been  delivered.  Its 
delivery  may  be  absolute  or  conditional.  If  the  latter,  then 
it  does  not  become  a  binding  obligation  until  the  condition 
upon  which  its  delivery  depends  has  been  fulfilled.  If  the 
payee  of  a  note  has  it  in  his  possession,  that  fact  would  be 
prima  facie  evidence  that  it  had  been  delivered;  but  it  would 
be  only  prima  fade  evidence.  The  fact  could  be  shown  to  be 
otherwise,  and  by  parol  evidence. 

Such  parol  evidence  does  not  contradict  the  note  or  seek  to 
vary  its  terms.  It  merely  goes  to  the  point  of  its  non-deliv- 
ery. The  note,  in  its  terms,  is  precisely  what  both  the  maker 
and  the  payee  intended  it  to  be.  No  one  desires  to  vary  its 
terms  or  to  contradict  them. 

In  the  case  of  Benton  v.  Martin,  52  N.  Y.  570,  the  court  say: 
"  Instruments  not  under  seal  may  be  delivered  to  the  one  to 
whom  upon  their  face  they  are  made  payable,  or  who  by  their 
terms  is  entitled  to  some  interest  or  benefit  under  them,  upon 
conditions  the  observance  of  which  is  essential  to  their  valid- 
ity. And  the  annexation  of  such  conditions  to  the  delivery  is 
not  an  oral  contradiction  of  the  written  obligation,  though 
negotiable,  as  between  the  parties  to  it  or  others  having  notice. 
It  needs  a  delivery  to  make  the  obligation  operative  at  all; 
and  the  efiect  of  the  delivery  and  the  extent  of  the  operation 
of  the  instrument  may  be  limited  by  the  conditions  with  which 
the  delivery  is  made." 

In  the  case  of  Schindler  v.  Muhlheiser,  45  Conn.  153,  the  head- 
note  is  as  follows:  "The  defendant  had  given  the  plaintiff 
his  note  for  certain  real  estate  conveyed  to  him  by  an  abso- 
lute deed  by  the  plaintiff.  Held,  in  a  suit  on  the  note,  that 
parol  evidence  was  admissible,  on  the  part  of  the  defendant, 
to  show  that  the  conveyance  was  not  intended  as  a  sale,  but 
was  made  by  the  plaintiff  for  a  certain  purpose  of  his  own, 
and  upon  an  understanding  with  the  defendant  that  the  land 
was  afterwards  to  be  conveyed  back,  and  that  the  note  was 
given  at  the  time  under  an  agreement  that  it  was  not  to  be 
paid." 

The  defense  in  that  case  was  really  that  the  note  had  never 
been  delivered  as  a  note  binding  upon  the  defendant.  The 
delivery  was  merely  formal,  and  was  so  understood  by  the 
parties.  See  also  Adams  v.  Oray,  8  Conn.  11;  20  Am.  Dec.  82; 
Cottirw  V.  Tillou,  26  Conn.  368;  68  Am.  Dec.  398;  Clarke  v. 
Tappin,  32  Conn.  56;  Post  v.  Gilbert,  44  Id.  9;  Hubbard  v. 
Ensign,  46  Id.  585. 
Aji.  St.  Bkp..  Vol.  L  -• 


114  ToBEY  V.  Hakes.  [Conn. 

We  think  the  court  erred  in  refusing  to  charge  the  jury  as 
requested  by  the  defendant. 

The  view  we  have  taken  of  this  question  renders  it  unneces- 
sary to  consider  the  other  questions  made  in  the  case. 

There  is  error  in  the  judgment  appealed  from,  and  it  is  re- 
versed, and  a  new  trial  ordered. 

Admissibility  or  Parol  Evidence  to  Explain  Written  Instrument: 
See  Blossom  v.  Griffin,  67  Am.  Dec.  75,  and  note  80;  Cobb  v.  Wallace,  98  Id. 
435,  and  note  441;  Keller  v.  Webb,  28  Am.  Rep.  209;  ffatch  v.  Douglas,  40  Id. 
154;  generally  such  evidence  is  inadmissible  to  contradict  or  vary  the  terms 
of  a  written  contract:  Id.;  Shaw  v.  Shaw,  79  Am.  Dec.  605,  and  note  606; 
McKim  V.  Aulbach,  39  Am.  Rep.  470;  Allen  v.  Bundle,  47  Id.  599;  Martin  v. 
Leioia,  32  Id.  682;  parol  evidence  ia  inadmissible  to  change  a  simple  indorse- 
ment of  a  promissory  note  into  an  indorsement  vidthout  recourse:  Doolittle  v. 
Ferry,  27  Id.  166;  K*rn  v.  Von  Phul,  82  Am.  Dec.  105;  and  where  a  contract 
is  to  be  performed  "immediately,"  such  evidence  is  inadmissible  to  excuse 
delay  in  the  performance:  McDei'mott  v.  Bailroad  Co.,  39  Am.  Rep.  526. 

Parol  Evidence  is  Admissible  to  Establish  Fact  Collateral  to 
Written  Instrument,  which  would  control  its  effect  and  operation  as  a 
binding  engagement:  Wedlinger  v.  Smithy  40  Am.  Rep.  727;  and  generally 
such  evidence  ia  admissible  to  explain  ambiguity,  or  to  apply  the  terms  of 
the  contract  to  the  subject-matter:  Stoops  v.  Smith,  97  Am.  De&  76,  and 
note  80. 

To  Show  Partial  Failure  of  Consideration  of  Promissort  Notb 
AS  Defense,  parol  evidence  of  what  took  place  at  the  time  the  note  was  made 
is  admissible:  Peterson  v.  Johnson,  94  Am.  Dec.  581. 

Parol  Evidence  of  Agreement  between  Payee  and  Drawer,  that 
the  drawer  of  a  bill  was  not  to  be  liable;  is  inadmissible:  Cumminga  v.  Kent,  58 
Am.  Rep.  796. 

Promissory  Note  may  be  Delivered  as  Escrow,  to  take  effect,  upon  the 
happening  of  a  certain  event,  to  be  proved  by  parol,  but  such  proof  must 
not  go  to  the  extent  of  varying  the  terms  of  a  note  absolute  on  its  face:  Foy 
T.  Blackstone,  83  Am.  Dec.  246,  and  see  note  248. 


ToBET  V.  Hakes. 

[54  CONNECTICDT,  274.] 

Writ  of  Mandamus  is  not  Regarded  as  Appropriate  Remedy  for  the 
enforcement  of  contract  rights  of  a  private  and  personal  nature,  and 
obligations  which  rest  wholly  upon  contract,  involving  no  questions  of 
<public  trust  or  official  duty.  And  the  vn-it  will  not  ordinarily  issue  if 
the  applicant  has  other  adequate  remedies. 

Mandamus  will  not  Lie  to  Compel  Secretary  of  Private  Corporation 
TO  Allow  the  transfer  of  stock  on  the  books  of  the  corporation. 

Mandamus.     The  facts  appear  in  the  opinion. 

H.  E.  Pardee^  for  the  appellant. 

T.  M.  Malthie^  for  the  defendant. 


Nov.  1886.]  ToBEY  V.  Hakes.  115 

By  Court,  Carpenter,  J.  This  is  an  application  for  a  man- 
damus to  compel  the  secretary  of  the  Utica  Cement  Manufac- 
turing Company,  a  private  corporation,  to  allow  the  plaintiff 
to  transfer  stock  on  the  books  of  the  company  to  a  purchaser, 
and  to  issue  a  certificate  therefor.  The  superior  court  denied 
the  application,  and  the  plaintiff  appealed. 

Regularly,  the  writ  of  mandamus  lies  against  a  public  oflBcer 
to  compel  the  performance  of  a  public  duty:  American  Asylum 
y.  Phosnix  Banky  4  Conn.  172;  lOAm.  Dec.  112.  Hosmer,  C.J., 
says  in  that  case:  "  It  never  lies  to  restore  to  a  private  ofl&ce, 
or  to  execute  a  private  right."  It  being  a  prerogative  writ, 
there  can  be  no  doubt  that  at  common  law  it  was  thus  limited. 
Cn  Fuller  v.  Plainfield  Academic  School^  6  Conn.  532,  the  writ 
was  held  to  lie  against  an  incorporated  school, — "a  corpora- 
tion established  by  the  supreme  power  of  the  state  for  public 
and  beneficial  purposes."  The  question  we  are  now  considering 
was  not  made  in  that  case.  It  was  claimed  that  the  defend- 
ant was  an  eleemosynary  corporation  of  private  endowment, 
and  that  the  court  had  no  power  to  review  the  action  of  the 
trustees.  But  it  was  held  that,  being  a  corporation  with  a 
special  charter  from  the  general  assembly,  it  was  controllable 
by  the  laws  of  the  land,  to  be  administered  by  competent 
tribunals.  It  seems  to  have  been  tacitly  conceded  that  the 
object  of  the  corporation  was  for  the  public  good,  and  that  the 
oflBce  of  trustee  was  of  a  public  nature.  In  Duane  v.  McDon' 
old,  41  Conn.  517,  this  court  said:  "  We  see  no  necessity  for  ex- 
tending the  common-law  remedy  of  mandamus  beyond  its 
original  and  well-established  limits."  In  Parrott  v.  City  of 
Bridgeport,  34  Id.  180,  26  Am.  Rep.  439,  it  again  said:  "  But 
the  writ  of  mandamus  has  never  been  considered  as  an  appro- 
priate remedy  for  the  enforcement  of  contract  rights  of  a  pri- 
vate and  personal  nature,  and  obligations  which  rest  wholly 
upon  contract,  and  which  involve  no  questions  of  public  trust 
or  official  duty." 

This  suit  is  against  a  private  corporation,  and  its  object  is 
to  enforce  a  mere  private  right.  It  is  in  no  sense  a  proceeding 
to  enforce  the  performance  of  a  public  duty.  We  have  no 
precedent  in  this  state  for  allowing  this  writ  to  compel  the 
transfer  of  stock  in  a  private  corporation,  and  the  authorities 
elsewhere  are  against  it:  Cushman  v.  Thayer  Mfg.  J.  Co.,  76 
N.  Y.  365;  32  Am.  Rep.  315;  Townes  v.  Nichols,  73  Me.  515; 
State  v.  People's  Building  etc.  Association,  43  N.  J.  L.  389; 
Bank  etc.  v.  Harrison,  66  Ga.  696. 


116  Sherwood  v.  Whiting.  [Conn. 

There  is  another  ground  on  which  the  writ  was  properly  re- 
fused. It  is  familiar  law  that  the  writ  will  not  ordinarily 
issue  if  the  plaintiff  has  other  remedies.  If  the  corporation 
improperly  refuses  to  transfer  the  stock,  it  is  clearly  liable  for 
the  damages  in  an  action  at  law.  If  that  remedy  is  not  ade- 
quate, or  if  for  any  reason  he  is  entitled  to  the  specific  stock 
purchased,  a  court  of  equity  will  entertain  jurisdiction,  and 
grant  relief. 

There  is  no  error  in  the  judgment  complained  of. 


Mandamus,  when  It  does  and  when  It  does  not  Lie:  See  Weeden  v. 
Town  Council,  98  Am.  Dec.  373,  and  note  375;  Pumphrey  v.  Mayor  etc.,  28 
Am.  Rep.  446;  Vickshurg  etc.  R.  li.  Co.  v.  Lowry,  48  Id.  76;  Stale  v,  Stevens, 
33  Id.  175;  will  not  lie  against  the  governor:  Jonesboro  etc.  Tump.  Co.  v. 
Brown,  35  Id.  713;  Mauran  v.  Smith,  5  Id.  564;  is  not  the  remedy  in  case 
of  doubtful  right:  People  v.  Johnson,  39  Id.  63;  and  writ  of,  will  not  issue  if 
there  exists  a  plain  and  adequate  remedy  in  the  ordinary  course  of  law:  State 
T.  McCrillua,  06  Am.  Dec.  169,  and  note  171. 

In  Case  op  Private  Corporation,  Mandamus  mat  Issue  on  its  petition 
against  persons  claiming  to  hold  its  ofl&ces:  Amencan  Ry  etc.  Co.  v.  Haven, 
3  Am.  Rep.  377;  but  does  not  lie  to  compel  the  transfer  of  stock  by  a  private 
corporation  to  a  purchaser:  Freon  v.  Carriage  Co.,  51  Id.  794,  and  note  798. 

Mandamus  Lies  to  Compel  Custodian  of  Excise  Bonds  to  Allow  a 
citizen  interested  in  inspecting  them  to  have  access  to  them:  Brown  v.  County 
Treasurer,  52  Am.  Rep.  800;  and  where  a  railway  company  attempts  to  dis- 
criminate against  one  by  refusing  to  sell  him  commutation  tickets  at  the 
eame  rate  that  it  sells  them  to  the  public  generally,  the  sale  may  be  en- 
forced by  mandamus:  State  v.  Delaware  etc.  R.  R.  Co.,  57  Id.  543;  and  a 
stockholder  in  a  private  corporation  may  have  mandamus  to  compel  the'pro- 
duction  of  its  books  and  papers  to  enable  him  to  ascertain  and  secure  his 
rights:  Commonwealth  v.  Phoenix  Iron  Co.,  51  Id.  184. 

Approval  op  Official  Bond  is  Judicial  and  not  Ministerial  Dutt» 
and  is  not  compellable  by  mandamus:  Ex  parte  Harris,  23  Am.  Rep.  559. 


Sherwood  v.  Whiting. 

[54  Connecticut,  830.] 

Ersoneods  Mention  of  Incident  in  Histort  of  Title  to  Piece  of 
Land  is  without  Force  as  against  the  mention  of  metes,  bounds, 
courses,  distances,  and  visible  monuments,  when  the  question  is,  whether 
the  deed  is  sufficient,  as  to  form,  to  convey  the  land  intended. 

Courts  should  Uphold  rather  than  Destroy  Deeds;  and  in  the  dis- 
charge of  their  duty  in  this  respect,  errors  in  description  are  frequently 
declared  to  be  of  no  eflfect. 

Deed — Construction  and  Effect. — The  property  intended  to  be  con- 
veyed was  described  as  follows:  "All  the  real  estate  of  0.  S.,  deceased, 
which  was  distributed  to  F.  S.  in  the  distribution  of  said  estate,  and 


Jan.  1887.]  Sherwood  v.  WniTiNa.  117 

afterwards  conveyed  to  me  by  said  F.  S."  In  point  of  fact,  P.  S.  had 
conveyed  to  the  grantor  before  the  distribution,  and  not  after,  and  for 
the  purpose  of  concealing  the  property  from  his  creditors;  but  his  deed 
fully  described  the  land  conveyed.  In  a  suit  to  compel  the  heirs  of  the 
grantor  to  execute  a  corrected  deed,  held,  that  it  needed  no  correction; 
if  legally  suflBcient  in  form,  such  deed  conveys  a  title  which  is  unassail- 
able; and  for  the  purpose  of  determining  its  suflSciency  in  form,  the  only 
tests  to  be  applied  are  those  which  would  be  applied  to  a  deed  executed 
upon  a  valuable  consideration. 

Suit  for  reformation  of  a  deed.  The  opinion  states  the 
case. 

J.  C.  Chamberlain,  for  the  plaintiffs. 

H.  J.  Curtis  and  J.  A.  Joyce,  for  the  defendants. 

By  Court,  Pardee,  J.  In  1848,  Oran  Sherwood,  of  Fairfield, 
died  intestate,  leaving  real  estate,  a  widow,  and  four  children. 
Of  these  last  was  Franklin  Sherwood,  the  plaintifi".  On  March 
1,  1856,  he  conveyed  his  undistributed  interest  in  his  father's 
estate  to  his  mother,  saying  in  his  deed  that  he  intended  "  to 
convey  my  entire  undivided  title  and  interest  in  and  to  all  the 
estate  of  my  father,  the  said  Oran  Sherwood,  late  deceased, 
within  said  tract  of  land,  as  heir  at  law  of  my  said  father 
therein."  This  conveyance  was  made  for  the  purpose  of  conceal- 
ing the  property  from  his  creditors.  On  June  16,  1856,  distri- 
bution was  made.  On  February  19, 1883,  his  mother,  desiring 
and  intending  to  reconvey  to  hira  precisely  what  he  had  con- 
veyed to  her,  executed  and  delivered  a  deed  to  his  wife,  for  his 
benefit,  in  which  she  described  the  property  as  follows:  "All  the 
real  estate  of  Oran  Sherwood,  deceased,  which  was  distributed 
to  Franklin  Sherwood  in  the  distribution  of  said  estate,  and 
afterwards  conveyed  to  me  by  said  Franklin  Sherwood  by 
sundry  deeds,  as  recorded  in  Fairfield  land  records."  In  point 
of  fact,  Franklin  Sherwood  had  conveyed  to  her  before,  not 
after,  distribution.  Mrs.  Sherwood,  the  grantor,  is  dead. 
Franklin  Sherwood  asks,  in  efiect,  that  her  heirs  at  law  may 
be  compelled  to  execute  a  corrected  deed.  They  resist,  and 
insist  that  inasmuch  as  he  conveyed  the  land  to  his  mother 
for  a  fraudulent  purpose,  equity  will  leave  him  where  ho 
placed  himself  If  we  should  concede  that  if  ^Irs.  Sherwood 
had  refused  to  reconvey  the  land  to  her  son  the  court  would 
not  come  to  his  relief,  this  case  would  not  be  disposed  of  She 
made  a  conveyance;  if  that  is  legally  sufficient  in  form,  the 
plaintiff's  title  is  unassailable;  and  for  the  purpose  of  deter- 
mining the  question  as  to  its  sufficiency  in  form,  the  tests,  and 


118  Sherwood  v.  Whiting.  [Conn. 

only  those,  are  to  be  applied  which  would  be  applied  to  a  deed 
executed  upon  a  valuable  consideration.  Every  concession 
which  would  be  made  in  behalf  of  the  latter  is  to  be  made 
in  behalf  of  the  former.  And  if  the  deed  had  been  made  to 
a  purchaser  for  full  and  valuable  consideration,  we  think  the 
heirs  of  the  grantor  could  not  obtain  the  assistance  of  any 
court  in  an  effort  to  inherit  both  the  consideration  and  the 
property.  There  is  and  can  be  no  doubt  or  question  as  to  the 
identity  or  location  of  the  piece  of  land  in  which  Franklin  Sher- 
wood had  an  interest.  In  his  deed  to  his  mother,  he  gave  the 
boundaries  and  contents;  he  stated  that  there  had  been  no 
distribution,  plainly  implying  that  there  would  be;  such  dis- 
tribution was  made  and  recorded;  by  this,  his  part  was  set  to 
him  by  metes  and  bounds;  and  the  mother,  in  her  reconvey- 
ance, declares  that  she  intends  to  restore  to  him  precisely  that 
which  he  conveyed  to  her,  and  refers  to  the  recorded  distribu- 
tion, where  it  is  described  to  a  certainty  in  every  particular. 
Having  secured  absolute  certainty  by  giving  metes  and  bounds 
and  quantity,  and  naming  visible  monuments,  by  way  of 
supererogation,  the  grantor  undertakes  to  mention  a  certain 
event  in  the  history  of  the  title  to  that  land,  and  mistakenly 
states  that  it  occurred  before  the  conveyance  to  herself,  when, 
in  fact,  it  occurred  after.  The  mention  affects  no  metes  or 
bounds  or  monuments,  no  courses  or  distances;  no  doubt  as  to 
identity  is  raised.  Every  person  reading  it  had  either  actual 
or  constructive  notice  of  the  mistake  in  stating  the  order  of 
those  events,  for  both  distribution  and  deed  were  upon  the 
public  records,  and  declared  that  order.  There  is  no  finding 
that  any  person  has  acquired  any  right  or  interest  in  or  title 
to  the  premises  by  conveyance  from  either  Oran  Sherwood  or 
his  mother,  or  by  adverse  occupation,  which  conflicts  with  the 
plaintiff's  claim  of  ownership.  As  a  matter  of  law,  as  a  rule 
of  construction  this  needless  and  erroneous  mention  of  an 
incident  in  the  history  of  the  title  to  a  piece  of  land  is  to  be 
held  to  have  no  force  as  against  the  mention  of  metes,  bounds, 
courses,  distances,  and  visible  monuments,  when  the  question 
is,  whether  the  deed  is  sufficient,  as  to  form,  to  convey  the 
land  intended. 

It  is  the  duty  of  courts  to  uphold  rather  than  to  destroy 
deeds.  It  is  the  fundamental  canon  of  interpretation  of  con- 
tracts to  discover  and  give  effect  to  the  intention  of  the  parties. 
In  the  case  before  us,  the  finding  makes  it  certain  that  the 
mother  intended  to  reconvey  to  her  son  precisely  that  interest 


Jan.  1887.]  Sherwood  v.  Whiting.  119 

in  his  father's  estate  which  he  had  conveyed  to  her  before  dis- 
tribution. When  a  piece  of  land  is  so  described  that  a  survey- 
or's chain  can  be  stretched  along  its  boundaries  with  absolute 
certainty  as  to  each  course,  distance,  and  monument,  a  trans- 
position of  dates,  in  stating  previous  conveyances  constituting 
the  chain  of  title,  will  not  cloud  or  affect  that  certainty,  nor 
destroy  the  operative  force  of  a  conveyance. 

We  cite  a  few  of  the  many  instances  given  in  the  reports 
where  courts,  in  the  discharge  of  their  duty  to  find  and  carry 
out  the  intent,  have  declared  that  certain  words  of  description 
in  deeds  are  to  be  of  no  effect,  which  apparently  are  far  more 
likely  to  give  rise  to  a  doubt  as  to  identity  than  is  the  erroneous 
word  in  the  deed  before  us.  In  Worthington  v.  Hylyer,  4  Mass. 
196,  the  words  of  description  are:  "All  that  my  farm  of  land 
in  said  Worthington  on  which  I  now  dwell,  being  lot  No.  17,  in 
the  first  division."  The  land  demanded  in  that  action  was  not 
included  in  lot  No.  17,  yet  the  court  held  that  it  passed,  the 
first  being  sufficient  to  ascertain  the  estate  intended  to  be  con- 
veyed, and  that  the  additional  description  inconsistent  with 
the  former  was  to  be  rejected,  because,  if  it  were  to  be  consid- 
ered as  an  essential  part  of  the  description,  the  deed  would 
be  void  for  repugnancy.  In  Cate  v.  Thayer,  3  Me.  71,  the 
question  was  as  to  one  of  the  lines  of  the  town  of  Dresden, 
which  was  described  as  a  course  "  north-northwest,  including 
the  whole  of  Gardiner's  farm  ";  .and  the  court  held  that  the 
whole  farm  was  included,  although  intersected  by  a  line  run- 
ning north-northeast,  because  the  farm  was  to  be  considered  as 
a  monument.  In  Keith  v.  Reynolds,  3  Id.  393,  the  description 
was:  "A  certain  tract  of  land  or  farm  in  Winslow,  including 
in  the  tract  which  was  granted  to  Ez.  Pattee,"  and  afterwards 
there  was  added  a  particular  description  by  courses  and  dis- 
tances, which  did  not  include  the  whole  farm.  It  was  con- 
tended that  the  particular  description  should  prevail,  in  pref- 
ence  to  the  other,  which  was  more  general  and  uncertain;  but 
it  was  decided  that  the  first  description  was  certain  enough, 
and  that  it  was  to  be  adopted  rather  than  the  description  by 
courses  and  distances,  which  was  more  liable  to  errors  and 
mistakes.  In  Lodge  v.  Lee,  6  Cranch,  237,  the  description 
was:  "  All  that  tract  or  upper  island  of  land  called  Eden  "; 
and  then  it  was  added,  "  beginning  at  a  maple  tree,"  and  de- 
scribing the  land  conveyed  by  bounds,  courses,  and  distances; 
but  so  as  not  to  include  all  the  island.  The  court  held  that 
the  whole  island  passed.     In  Jackson  v.  Barringer,  15  Johns. 


120  Sherwood  v.  Whiting.  [Conn. 

471,  the  grant  was:  "The  farm  on  which  J.  J.  D.  now  lives," 
which  was  bounded  on  three  sides,  and  to  contain  eighty  acres 
in  one  piece.  The  farm  contained  a  hundred  and  forty-nine 
acres;  and  the  decision  was,  that  the  whole  farm  passed.  In 
Swyft  V.  Eyres,  Cro.  Car.  546,  the  land  conveyed  was  described 
as  "  all  the  grantor's  lands  lying  in  Chesterton,  viz.,  seventy- 
eight  acres  of  land,  with  all  profits,  tithes,  etc.";  and  then 
were  added  the  words,  "  all  which  lately  were  in  the  occupa- 
tion of  Margaret  Peto."  It  was  found  that  the  tithes  of  these 
glebe  lands  were  never  in  the  tenure  of  Margaret  Peto,  though 
other  lands  and  tithes  were.  But  it  was  held,  notwithstanding, 
that  the  lands  and  tithes  first  described  passed.  In  Eliot  v. 
Thatcher,  2  Met.  44,  note,  the  land  conveyed  was  thus  described: 
"All  my  real  property,  or  homestead  so  called,  lying  and  being 
in  Dartmouth,  together  with  about  thirty  acres  of  land,  let  the 
same  be  more  or  less;  for  more  particular  boundaries  reference 
may  be  had  to  a  deed  given  by  Clark  Ricketson  to  David 
Thatcher  of  the  above-mentioned  premises."  It  appeared  that 
the  grantor  was  seised  only  of  a  part  of  the  land  which  he 
bought  of  Ricketson,  but  he  had  bought  some  land  adjoining 
thereto,  being  in  the  whole  about  thirty  acres,  and  it  was  de- 
cided that  the  whole  passed;  it  being  held  that  the  word  "home- 
stead" was  a  sufficiently  certain  description,  and  that  the 
grant  ought  not  to  be  limited  and  restrained  by  the  subsequent 
reference  to  Ricketson's  deed,  it  being  a  well-known  rule  of 
construction  of  deeds  that  a  precedent  particular  description 
shall  not  be  impaired  by  a  subsequent  general  description  or 
reference,  and  that  deeds  are  to  be  construed  according  to  the 
intentions  of  parties;  and  that  if  there  be  any  doubt  or  repug- 
nancy in  the  words,  such  construction  is  to  be  made  as  is  most 
strong  against  the  grantor,  because  he  is  presumed  to  have  had 
a  valuable  consideration  for  what  he  parts  with. 

In  Hastings  v.  Hastings,  110  Mass.  280,  A.,  the  owner  of  a 
farm,  conveyed  in  1853  by  deed  "  the  farm  on  which  I  now 
live,  and  is  the  same  which  was  deeded  to  me  by  J.  G.,  March 
15,  1810,  reference  being  had  to  said  deed."  A  lot  of  land 
which  had  formed  part  of  the  farm  for  forty  years  was  not 
included  in  the  deed  of  March  15,  1810,  but  had  been  con- 
veyed to  A.  by  J.  G.  by  a  deed  dated  January  11,  1810.  It 
was  held  that  this  lot  passed  by  the  deed  of  A.  In  Melvin  v. 
Proprietors  etc.,  5  Met.  15,  38  Am.  Dec.  334,  the  heirs  of  K. 
gave  deeds  to  C.  of  land  which  they  described  as  the  "  estate 
on  which  C.  now  lives,"  or  the  "  estate  called  the  C.  farm,"  and 


Jan.  1887.]  Sherwood  v.  Whiting.  121 

"  being  the  same  which  was  conveyed  by  M.  to  K.  by  deed  " 
bearing  a  certain  date;  and  it  was  shown  that  C,  as  lessee  of 
K.  and  otherwise,  had  previously  occupied  the  whole  farm  for 
many  years.  It  was  held  that  the  deeds  conveyed  the  right 
and  title  of  the  heirs  to  the  whole  farm,  although  the  deed 
from  M.  to  K.,  which  was  therein  referred  to,  did  not  include 
the  whole.  The  court  says:  "Another  rule  of  construction  is, 
that  if  the  description  be  sufficient  to  ascertain  the  estate  in- 
tended to  be  conveyed,  it  will  pass;  although  some  particular 

circumstance  be  added  inconsistent  with  the  description 

If  the  land  had  been  conveyed  by  reference  to  known  monu- 
ments and  boundaries,  it  would  be  clear  that  a  subsequent 
reference  to  the  mortgage  deed  would  not  operate  by  way  of 
restriction;  and  we  think  there  is  no  good  reason  why  the 
description  in  these  deeds,  the  boundaries  of  the  farm  conveyed 
being  certain  and  undoubtedly  well  known  to  the  parties,  should 
not  be  held  equally  conclusive."  In  Deacons  etc.  v.  Walker^ 
124  Mass.  69,  A  mortgaged  a  "farm"  known  as  the  "T.  place," 
—  "together  with  all  the  buildings  thereon,  including  mills, 
water  power,  machinery,  and  fixtures  belonging  thereto," — 
"  being  the  same  estate  which  was  conveyed  to  me  by  B  by 
her  deed  "  duly  recorded,  "  to  which  said  deed  and  the  record 
thereof  reference  is  made  for  a  description  of  said  premises." 
The  deed  from  B  did  not  include  a  small  parcel  of  land  oa 
which  stood  the  only  mill  of  A,  with  the  connected  buildings, 
but  did  include  the  dam  and  pond  which  furnished  power  to 
the  mill.  It  was  held  that  this  parcel  passed  by  the  deed  to 
A.  The  court  said:  "Reference  is  made  to  the  Holden  deed, 
not  for  the  purpose  of  fixing  the  metes  and  bounds,  as  if 
describing  the  lot  conveyed,  but  to  show  the  grantor's  chain 
of  title."  In  Andrews  v.  Pearson,  6<S  Me.  19,  in  a  convey- 
ance of  a  "  homestead  farm,"  one  of  the  parcels  composing  it 
was  described  as  "  twelve  and  a  half  acres  out  of  lot  num- 
bered eight  in  the  first  range."  It  was  held  that  the  whole 
parcel  passed,  although  it  in  fact  contained  twenty-five  acres. 
The  court  said:  "  Freeman  Allen  was  the  owner  of  a  farm  of 
ancient  and  well-defined  boundaries.  He  undertook  to  con- 
vey it  to  the  plaintifl*.  He  first  described  it  as  his  *  home- 
stead farm.'  He  then  undertook  to  give  a  further  description 
of  it  by  naming  the  several  parcels  or  portions  of  which  it 
was  composed.  One  of  them  is  described  as  twelve  and  a 
half  acres  out  of  a  lot  numbered  eight  in  the  first  range. 


122  Sherwood  v.  Whitino.  [Conn. 

This  portion  of  the  farm,  in  fact,  contained  twenty-five  acres. 
The  question  is,  whether  this  mistake  left  half  of  this  parcel 
unconveyed.  We  think  not.  We  think  it  falls  within  the 
principle,  falsa  demonstratio  non  nocet;  a  mere  false  description 
in  one  particular,  where  enough  remains  to  make  it  reasonably 
certain  what  premises  were  intended  to  be  conveyed,  will  not 
defeat  the  conveyance."  In  Union  etc.  v.  Skinner,  9  Mo.  App, 
189,  it  is  held  that  "  when  one  sells  a  lot  by  its  number  as 
laid  out  in  a  recorded  plat,  and  in  giving  a  further  description 
misstates  the  boundary  line  thereof,  the  monument  will  pre- 
vail, and  the  further  false  description  be  rejected."  In  Green 
Bay  etc.  v.  Hewett,  55  Wis.  96,  42  Am.  Rep.  701,  a  grantor  by 
deed  conveyed  to  the  plaintiff  and  its  successors  and  assigns 
forever,  all  his  claim,  right,  title,  and  interest  in  or  to  a  piece 
of  land;  in  a  subsequent  clause  he  declares  that  the  interest 
and  title  intended  to  be  conveyed  by  the  deed  is  only  that  ac- 
quired by  virtue  of  a  deed  to  him ;  this  last  conveyed  to  him 
only  an  undivided  half.  It  was  held  that  his  whole  inter- 
est passed.  In  Wiley  v.  Lovely,  46  Mich.  83,  a  deed  described 
the  land  conveyed  as  lot  seventy-seven  of  the  original  plat  of 
the  village  as  recorded;  this  plat  contained  only  twenty-nine 
lots;  another  plat,  unrecorded,  designated  the  lot  as  seventy- 
eight;  another  unrecorded  plat  contained  the  lot,  and  it  was 
shown  that  it  had  been  held,  taxed,  and  dealt  with  for  more 
than  twenty-five  years  as  lot  seventy-seven.  It  was  held  that 
the  error  in  description  did  not  invalidate  the  conveyance. 
In  Dwight  v.  Tyler,  49  Mich.  614,  it  was  held  that  "  when  a 
deed  contains  a  wrong  description,  but  the  land  can  be  iden- 
tified by  inquiry  based  on  landmarks  referred  to,  the  title 
held  by  the  grantor  is  not  merely  equitable  but  legal,  and 
may  be  encumbered  as  such." 

The  superior  court  is  advised  that  the  deed  to  Mary  A.  Sher- 
wood, one  of  the  plaintifis,  in  its  present  form,  is  effective  to 
convey  to  her  all  of  the  right,  title,  and  interest  in  the  estate 
of  Oran  Sherwood  which  Franklin  Sherwood  conveyed  to  his 
mother,  including  the  land  upon  which  the  right  of  dower 
rested.  For  that  reason  and  for  no  other,  that  court  is  advised 
to  dismiss  the  petition. 


Deeds  are  to  be  Construed  According  to  Intent  op  Parties,  and 
where  the  manifest  intent  appears,  words  which  are  repugnant  to  it  are  to 
be  rejected:  Flagg  v.  Eames,  94  Am.  Dec.  363,  and  cases  collected  in  note 
869;  Graves  v.  Atwood,  52  Am.  Rep.  610. 


Jan.  1887.]    Credit  Co.  v.  Howe  Machine  Co.  123 

Deed  is  not  Void  fob.  Uncertaintt  of  Description,  if  it  can  be  made 
good  by  any  construction:  Punley  v.  Hayes,  92  Am.  Dec.  350;  and  see  Neg' 
ley  V.  Lindsay,  5  Am.  Rep.  427. 

In  Aokkement  for  Deed  of  Land  Describing  It  by  Nxtmbkrs  and 
Dimensions,  and  Conclcdino,  "known  as  the  Cook  and  Clover  block,"  the 
latter  words  controlled:  Lyman  v.  Oedney,  55  Am.  Rep.  871. 


Credit  Company,  Limited,  v.  Howe  Machine  Co. 

[54  Connecticct,  857.] 

Drafts  Accepted  by  Treasurer  of  Corporation  are  Presumed  to  bb 
Properly  Accepted  by  the  corporation,  there  being  no  circumstances 
to  indicate  fraud  or  illegality;  and  in  an  action  by  the  holder  against  the 
corporation  as  acceptor,  the  burden  of  proof  is  upon  the  defendant  cor- 
poration to  show  that  the  plaintiff  had  knowledge  that  the  acceptances 
were  for  accommodation,  and  that  he  was  not  a  bona  fide  holder  for 
value. 

Corporation  having  Power  to  Deal  in  Mercantile  Paper  Necessary 
TO  ITS  Business  is  Bound  by  acceptances  of  accommodation  paper  by  its 
treasurer,  except  as  against  those  having  notice  that  the  paper  was  for 
accommodation. 

Bona  Fide  Holder  for  Value  of  Bill  op  Exchange  before  Accept- 
ance MAY  Enforce  It  against  a  subsequent  acceptor,  although  no  new 
consideration  moves  from  him  to  the  drawee.  The  rights  of  the  holder 
of  a  bill  of  exchange  are  the  same,  whether  they  were  acquired  in  an- 
ticipation of  or  subsequent  to  the  acceptance. 

Persons  Dealing  in  Commercial  Paper  of  Corporation  are  Bound  to 
Take  Notice  of  the  extent  of  its  power,  but  are  not  required  to  have 
knowledge  of  the  circumstances  under  which  it  is  exercised.  And  espe- 
cially is  this  so  where  the  agent  or  officer  of  the  corporation  which  exer- 
cises the  power,  at  the  same  time  represents  the  corporation,  and  speaks 
for  it  in  giving  information  as  to  the  circumstances. 

PxBSON  Dealing  with  Corporation  is  Bound  to  Know  whether  or  not 
the  officer  or  agent  who  representa  it,  and  acts  in  its  name,  is  authorized 
so  to  do.  If  he  is,  and  the  act  is  within  the  apparent  scope  of  his  au- 
thority, the  dealer  is  not  bound  to  have  knowledge  of  extrinsic  fact* 
making  it  improper  for  him  to  act  in  that  case. 

Action  upon  four  bills  of  exchange  accepted  by  the  treasurer 
of  the  defendant  corporation.  The  plaintiff,  an  English  finan- 
cial institution  located  in  London,  engaged  in  the  business  of 
discounting  and  buying  bills,  making  loans,  etc.  The  defend- 
ant corporation  was  organized  under  the  laws  of  Connecticut, 
located  in  Bridgeport,  but  during  the  year  1877  had  its 
principal  business  office  in  the  city  of  New  York.  For  many 
years  prior  to  1877  A,  B.  Stockwell  was  president  of  the  de- 
fendant company,  and  his  brother,  Levi  S.  Stockwell,  treas- 
urer; but  the  latter  was  both  president  and  treasurer  from 


124  Credit  Co.  v.  Howe  Machine  Co.  [Conn. 

January  until  August,  1877.  In  1876  and  1877  A.  B.  Stock- 
well  was  engaged  in  speculating  in  stocks  in  London,  and  for 
many  years  prior  to  1877,  and  until  after  the  acceptance  of 
the  hills  in  suit  he  had  an  open  account  with  the  defendant 
on  its  books.  He  made  large  deposits  with  it,  and  drew  on  it 
in  large  amounts,  and  at  the  time  of  the  acceptance  of  the 
drafts  in  suit  his  account  was  largely  overdrawn.  He  drew 
drafts  on  the  defendant  company  at  the  times  and  to  the 
amounts  specified,  as  follows:  In  December,  1876,  to  the 
amount  of  forty-five  thousand  dollars;  on  February  6, 1877,  to 
the  amount  of  thirty  thousand  dollars;  on  March  28,  1877,  to 
the  amount  of  thirty  thousand  dollars,  —  all  of  which  drafts 
were  similar  to  the  drafts  in  suit,  and  all  were  accepted  and 
paid  by  the  defendant;  and  all  of  these  drafts  were  negotiated 
by  the  plaintiflf  for  said  A.  B.  Stockwell  in  a  similar  manner 
to  the  drafts  in  suit.  On  March  16,  1877,  said  A.  B.  Stock- 
well  drew  upon  the  defendant  in  favor  of  the  plaintiff  four 
drafts,  three  for  ten  thousand  dollars  each,  and  one  for  fifteen 
thousand  dollars,  all  payable  at  ninety  days'  sight.  All  were 
addressed  to  the  defendant,  at  its  place  of  business  in  New 
York,  and  all  were  accepted  on  April  21,  1877,  as  of  7th  of 
April,  by  Levi  S.  Stockwell,  as  treasurer  of  said  defendant 
company.  On  March  26,  1877,  the  plaintiff,  at  the  request  of 
said  A.  B.  Stockwell,  indorsed  these  four  drafts  and  sold  them 
through  a  broker,  one  Baker,  who  also  indorsed  them  to  Mon- 
tague &  Co.  The  drafts  were  presented  to  the  defendant  for 
acceptance  April  7th,  and  acceptance  was  refused,  but  after- 
wards, on  April  21st,  they  were  accepted,  as  above  stated. 
Said  drafts  were  not  paid  on  maturity,  and  were  duly  protested 
for  non-payment;  and  upon  notice  of  their  non-payment,  the 
plaintiff,  being  an  indorser  thereon  and  payee  therein  named, 
paid  to  Montague  &  Co.  the  amount  of  said  drafts,  and  took 
them  up.  At  a  directors'  meeting  of  the  defendant  company 
in  1865,  it  was  "resolved  that  the  treasurer  be,  and  he  hereby 
is,  authorized  and  empowered  to  make,  sign,  indorse,  and  ac- 
cept notes,  checks,  and  bills  of  exchange  in  the  name  and  for 
and  on  account  of  this  company,  and  generally  to  execute  any 
and  all  papers  relating  to  the  business  of  the  company."  The 
directors  adopted  a  resolution  of  similar  import  in  1874.  It 
was  shown  that  the  directors  and  stockholders  of  the  defend- 
ant company  had  knowledge  of  the  accounts  between  the  com- 
pany and  A.  B.  Stockwell,  and  that  said  Levi  S.  Stockwell, 
the  treasurer,  was  accepting  drafts  drawn  on  said  company  by 


Jan.  1887.]     Credit  Co.  v.  Howe  Machine  Co.  125 

said  A.  B.  Stock  well;  and  there  was  no  evidence  that  they 
ever  objected  to  these  transactions.  J.  Hume  Webster  is,  and 
was  during  said  transactions,  the  managing  director  of  the 
plaintiff  company,  and  also  a  member  of  the  firm  of  Hume 
Webster  &  Co.  of  London,  bankers.  The  plaintiff  campany, 
on  making  sale  of  said  four  drafts,  paid  over  the  proceeds,  less 
commissions,  to  said  A.  B.  Stockwell,  who  placed  them  to  his 
account  with  said  Hume  Webster  &  Co.,  to  whom  he  was  then 
indebted  in  a  much  larger  amount.  Said  J.  Hume  Webster 
had  knowledge  of  the  stock  speculations  of  said  A.  B.  Stock- 
well,  and  that  the  money  obtained  by  him  on  the  drafts  drawn 
by  him  on  the  defendant  company  was  used  by  him  in  such 
speculations;  but  the  other  members  of  the  firm  of  Hume 
Webster  &  Co.,  and  of  the  plaintiff  company,  had  not  such 
knowledge.  Upon  the  above  facts,  the  case  was  reserved  for 
the  advice  of  the  supreme  court. 

R.  S.  Ranson  and  E.  W.  Seymour,  for  the  plaintiff. 

W.  D.  Shipman,  and  M.  H.  Cardozo,  S.  H.  Wheeler,  Jr.,  and 
0.  Stoddard,  for  the  defendant. 

By  Court,  Carpenter,  J.  As  this  case  was  commenced  be- 
fore the  practice  act  went  into  operation,  the  pleadings  are 
under  the  old  practice.  The  defendant  denies  the  matters 
alleged  in  the  declaration,  and  gives  notice,  in  substance,  that 
it  will  prove  that  the  treasurer  of  the  defendant  corporation 
was  not  authorized  to  accept  these  drafts;  that  the  drafts  being 
solely  for  the  accommodation  of  the  drawer,  the  company 
itself  under  its  charter  and  by-laws  had  no  power  to  accept 
them;  and  that  the  plaintiff  is  not  a  bona  fide  holder  for  value. 

The  defendant's  notice  alleges  that  these  bills  were  not  ac- 
cepted by  the  defendant,  or  by  or  with  its  authority  or  consent, 
but  were  accepted  by  one  of  its  ofl&cers  without  authority,  and 
contrary  to  the  provisions  of  its  by-laws,  of  which  the  plain- 
tiff had  notice. 

It  is  not  contended  that  the  treasurer  had  no  power  under 
any  circumstances  to  accept  any  draft;  for  the  votes  of  the 
directors  and  the  course  of  dealing  by  the  defendant  clearly 
show  that  he  had  such  power;  but  it  is  claimed  that  under 
the  circumstances  he  had  no  power  to  accept  these  particular 
drafts.  Obviously,  the  authority  or  want  of  authority  in  the 
treasurer  to  accept  these  drafts  depended,  not  upon  the  nature 
of  the  act,  but  upon  the  attending  facts  and  circumstances. 


126  Credit  Co.  v.  Howe  Machine  Co.  [Conn. 

That  he  had  power  to  accept  drafts  under  some  circumstances 
is  not  denied.  Hence,  if  they  were  drawn  on  account  of  the 
defendant's  business,  or  to  draw  out  of  its  treasury  money 
which  belonged  to  A.  B.  Stockwell,  the  power  of  the  treasurer 
to  accept  them  would  be  conceded.  But  the  strength  of  the 
defendant's  position  in  this  part  of  the  case  lies  in  the  fact 
that  the  defendant  was  not  owing  Stockwell,  and  the  money 
was  not  wanted  for  any  purpose  connected  with  the  defend- 
ant's business.  As  between  the  Stockwells  or  either  of  them 
and  the  defendant,  the  acceptances  were  unauthorized  and 
void;  but  as  between  the  plaintiff  and  the  defendant,  the  an- 
swer to  the  question  we  are  considering  hinges  upon  the  answer 
to  another  question, — Is  the  plaintiff  a  bona  fide  holder  for 
value? 

The  proper  answer  to  that  question  we  shall  consider  later; 
but  assuming  for  the  present  that  the  answer  may  be  an 
affirmative  one,  we  pass  to  the  next  question,  which  is,  Was 
the  defendant  authorized  to  accept  accommodation  drafts  ? 
Clearly  not  as  to  all  parties  with  notice.  But  as  corporations 
may  accept  drafts  for  some  purposes,  and  as  the  purpose  for 
which  a  draft  is  drawn  does  not  ordinarily  appear  on  its  face, 
the  question  as  to  all  parties  with  notice  is,  Was  it  drawn  for 
a  legitimate  purpose?  As  to  all  others,  the  important  inquiry 
is,  Is  the  plaintiff  a  bona  fide  holder  for  value?  And  that 
brings  us  to  the  main  question  in  the  case. 

A  preliminary  question  of  some  importance  which  bears 
directly  on  this  question  is,  On  whom  was  the  burden  of 
proof?  In  the  pleadings,  the  defendant  assumes  that  bur- 
den; and  properly  so  upon  principle.  The  drafts  apparently 
may  be  for  a  legitimate  purpose.  As  there  is  some  presump- 
tion that  all  parties  act  properly,  and  within  the  scope  of  their 
powers,  the  plaintiff  establishes  a  prima  facie  case  when  it 
presents  the  drafts  duly  drawn  and  accepted,  there  being  no 
circumstances  indicating  fraud  or  illegality.  And  so  are  the 
authorities:  Edwards  on  Bills,  686,  689;  Daniel  on  Nego- 
tiable Instruments,  626,  662;  1  Parsons  on  Notes  and  Bills, 
255. 

It  is  insisted  that  the  plaintiff  does  not  sustain  to  this  de- 
fendant the  relation  of  a  bona  fide  holder  for  value,  for  the 
reason  that  the  drafts  were  indorsed  and  negotiated  by 
the  plaintiff  before  they  were  accepted;  and  that  therefore  the 
plaintiff  parted  with  nothing  of  value  upon  the  credit  of  the 
acceptances.     In  support  of  this  position,  the  case  of  Farmers^ 


Jan.  1887.]    Cbedit  Co.  v.  Howe  Machine  Co.  127 

and  Mechanics'  Bank  v.  Empire  Stone  Dressing  Co.,  5  Bosw. 
275,  is  cited.  We  are  unable  to  accept  that  decision  as  a  cor- 
rect exposition  of  the  law.  The  court  of  appeals  says  of  that 
case,  in  the  case  of  Heuertematte  v.  Morris,  101  N.  Y.  63,  54 
Am.  Rep.  657:  "  It  is  true  that  some  expressions  of  the  learned 
judge  writing  in  that  case  may  justify  the  citation,  yet  it 
should  be  considered  that  those  remarks  were  unnecessary  to 
the  decision  of  the  case,  and  the  same  court  have  twice  since 
then  refused  to  follow  it.  We  conceive  the  rule  there  laid 
down  finds  no  support  in  the  doctrines  of  the  text-writers  or 

the  reported   cases If  a  party  becomes  a  bona  fide 

holder  for  value  of  a  bill  before  its  acceptance,  it  is  not  essen- 
tial to  his  right  to  enforce  it  against  a  subsequent  acceptor 
that  an  additional  consideration  should  proceed  from  him  to 
the  drawee.  The  bill  itself  implies  a  representation  by  the 
drawer  that  the  drawee  is  already  in  receipt  of  funds  to  pay; 
and  his  contract  is  that  the  drawee  shall  accept  and  pay  ac- 
cording to  the  terms  of  the  draft.  The  drawee  can,  of  course, 
upon  presentment,  refuse  to  accept  a  bill,  and  in  that  event, 
the  only  recourse  of  the  holder  is  against  the  prior  parties 
thereto;  but  in  case  the  drawee  does  accept  a  bill,  he  becomes 
primarily  liable  for  its  payment,  not  only  to  its  indorsees,  but 
also  to  the  drawer  himself." 

It  is  not,  therefore,  true  that  the  purchaser  of  a  bill  before 
acceptance  trusts  wholly  to  the  credit  of  the  drawer.  He 
believes  and  expects  that  the  drawee  will  accept;  and  upon 
such  belief  and  expectation  he  acts.  When  Stockwell  pre- 
sented these  bills  to  the  plaintiflF,  he  contracted  that  the 
drawee  would  accept  and  pay  them.  Upon  that  promise  the 
plaintiflf  relied. 

The  reply  to  Heueriemxilte  v.  Morris,  supra,  is,  that  in  that 
case  the  acceptor  was  an  individual,  and  not  a  corporation; 
80  that  no  question  arose  as  to  the  validity  of  the  acceptance. 
But  the  validity  of  the  acceptance  is  not  the  question  we  are 
now  considering.  We  have  already  endeavored  to  show  that 
the  acceptance  in  the  case  at  bar  bound  the  corporation  as  to 
a  bona  fide  holder  for  value.  The  precise  question  now  is, 
whether  a  person  who  receives  an  accommodation  bill  before 
acceptance,  no  new  consideration  moving  from  him  to  the 
drawee,  can  avail  himself  of  a  subsequent  acceptance.  In 
Farmert^  and  Mechanics^  Bank  v.  Empire  Stone  Dressing  Co., 
6  Bosw.  275,  it  was  held  that  he  could  not.  In  Heuertematte 
V.  Morris,  supra,  it  was  held  that  he  could.     The  latter  case 


128  Credit  Co.  v.  Howe  Machine  Co.  [Conn. 

was  put  upon  the  broad  ground  that  the  former  was  not  law, 
and  not  upon  any  supposed  distinction  between  corporations 
and  individuals.  The  good  faith  of  the  holder  must  not  be 
confounded  with  the  validity  of  the  acceptance.  Although 
the  latter  may,  and  often  does,  depend  upon  the  former,  yet 
they  are  distinct  questions  for  most  purposes.  An  accommo- 
dation acceptance  being  valid,  and  the  plaintifiF  otherwise  a 
holder  in  good  faith,  the  mere  fact  that  he  received  the  bill 
before  acceptance  does  not  make  him  a  mala  fide  holder. 

In  Arpin  v.  Owens,  140  Mass.  144,  the  court  say:  "It is  im- 
material when  an  acceptance  is  made;  it  may  be  made  at  any 
time,  and  the  rights  of  the  payee  and  of  the  indorsee  are  the 
same  after  it  is  made,  whether  they  were  acquired  in  anticipa- 
tion of  it  or  subsequent  to  it." 

These  drafts  were  indorsed  and  sold  by  the  plaintiff,  and 
the  avails  were  paid  over  to  A.  B.  Stockwell.  Stockwell  paid 
the  money  so  received  to  Hume  Webster  &  Co.  So  far  the 
transaction  on  its  face  is  free  from  suspicion.  It  is  not 
claimed  that  any  fraud  or  illegality  is  found  in  terms.  The 
most  that  can  be  claimed  is,  that  there  are  certain  circum- 
stances in  the  case  from  which  fraud  may  be  inferred.  Those 
circumstances  are,  that  Stockwell  had  been  previously  specu- 
lating in  stocks  with  the  knowledge  of  Webster;  that  in  doing 
so  he  had  become  largely  indebted  to  Hume  Webster  &  Co.,  a 
firm  in  which  J.  Hume  Webster  was  a  partner;  that  J.  Hume 
Webster  was  the  agent  by  whom  the  plaintiff  indorsed  and 
sold  these  drafts;  and  that  the  money  received  therefor  was 
in  a  short  time  paid  over  to  Hume  Webster  &  Co.  in  part 
liquidation  of  Stockwell's  indebtedness  to  that  firm. 

But  these  circumstances  are  not,  in  law,  equivalent  to  fraud. 
At  one  time  in  England  the  question  was  held  to  be  whether 
the  plaintiff  had  taken  the  bijl  under  circumstances  which 
ought  to  have  excited  the  suspicion  of  a  prudent  and  careful 
man:  Gill  v.  Cubitt,  3  Barn.  &  C.  466.  Afterwards  the  rule 
was  so  far  modified  as  to  require  gross  negligence:  Crook  v. 
Jadis,  5  Barn.  &  Adol.  909.  Later  still,  gross  negligence  was 
held  to  be  evidence  of  mala  fides  merely,  and  not  the  thing 
itself.  In  Goodman  v.  Harvey,  4  Ad.  &  E.  870,  Lord  Denman 
says:  "I  believe  we  are  all  of  opinion  that  gross  negligence 
only  would  not  be  a  sufl5cient  answer  where  the  party  has 
given  consideration  for  the  bill.  Gross  negligence  may  be  evi- 
dence of  mala  fides,  but  is  not  the  same  thing.  We  have 
shaken  off  the  last  remnant  of  a  contrary  doctrine." 


Jan.  1887.]    Cbedit  Co.  v.  Howe  Machine  Co.  129 

In  Svnft  V.  Tyson,  16  Pet.  1,  Story,  J.,  says:  "There  is  no 
doubt  that  a  bona  fide  holder  of  a  negotiable  instrument  for  a 
valuable  consideration,  without  any  notice  of  facts  which  im- 
peach its  validity  as  between  the  antecedent  parties,  if  he 
takes  it  under  an  indorsement  made  before  the  same  becomes 
due,  holds  the  title  unaffected  by  those  facts,  and  may  recover 
thereon,  although  as  between  the  antecedent  parties  the  trans- 
action may  be  without  any  legal  validity."  ''  Notice  of  facts 
which  impeach  its  validity,"  means  knowledge  of  those  facts: 
Goodman  v.  Simonds,  20  How.  343;  and  by  "  facts"  is  intended 
facts  which  of  themselves  impeach  the  transaction,  —  in  this 
case  fraud,  and  not  other  facts  which  tend  to  prove  fraud  or 
which  excite  suspicion:  Goodman  v.  Simonds,  supra.  And 
such  is  the  law  of  this  state:  Brush  v.  Scribner,  11  Conn.  388; 
29  Am.  Dec.  303.  We  think  that  is  the  law  of  this  country; 
at  least  we  are  aware  of  no  contrary  decision. 

'*  But  it  must  still  be  true,"  as  is  said  in  1  Parsons  on  Notes 
and  Bills,  259,  "  that  while  gross  or  even  the  grossest  negli- 
gence is  a  different  thing  from  fraud,  the  negligence  may  be 
such,  and  so  accompanied,  as  to  afford  reasonable  and  suflS- 
cient  grounds  for  believing  that  it  was  intentional  and  fraud- 
ulent." By  this  we  apprehend  that  no  more  is  meant  than 
that  the  evidence  may  be  so  strong  as  to  justify  the  court  in 
finding  fraud,  and  applies  only  to  courts  that  pass  upon  both 
questions  of  fact  and  law,  and  has  no  application  to  this 
court,  which  must  take  the  facts  as  they  are  found  by  the 
court  below. 

It  may  be  further  claimed  that  the  fraud  here  contended 
for  is  not  the  fraud  of  antecedent  parties  to  the  bills,  but 
fraud,  if  it  exists,  to  which  the  plaintiff  itself  is  a  party;  and 
that  if  the  facts  and  circumstances  establish  fraud  with  rea- 
sonable certainty,  the  court  ought  so  to  regard  it,  notwith- 
standing the  fact  that  fraud  is  not  expressly  found.  We 
apprehend  that  the  proposition  does  not  relieve  the  case  of  the 
objection  that  the  question  is  still  one  of  fact  and  not  of  law. 
Nevertheless,  assuming  that  the  principle  involved  in  the 
proposition  is  a  correct  one,  we  will  briefly  examine  the  facta 
to  see  if  it  has  any  application  to  this  case.  To  make  the 
principle  applicable,  we  think  the  facts  should  be  of  a  conclu- 
sive character.  If  they  are  ambiguous,  or  consistent  with  the 
absence  of  fraud,  they  are  not  suflicient. 

There  are  certain  facts  essential  to  the  conclusive  character 

of  this  evidence,  which  are  wanting;  and  their  absence  is  sig- 
i  v.  St.  Rsp.,  Vol.  L — 9 


130  Credit  Co.  v.  Howe  Machine  Co.  [Conn. 

nificant.  It  is  not  found  that  "Webster  knew  that  Stockwell 
had  no  funds  in  the  defendant's  treasury,  against  which  these 
drafts  were  drawn.  If  Stockwell  had  in  fact  had  funds  there, 
that  would  have  eflfectually  repelled  any  imputation  of  fraud. 
Webster's  knowledge  of  the  purpose  of  the  drafts,  a  previous 
agreement  even  with  Stockwell  that  the  avails  should  be  paid 
to  Hume  Webster  &  Co.,  would  have  been  of  no  consequence. 
So  also  if  he  really  believed  that  the  bills  were  drawn  against 
funds.  That  he  did  so  believe  is  probable,  as  certain  undis- 
puted facts  afiford  a  reasonably  good  foundation  for  such  a 
belief.  For  about  three  years  Webster  had  known  and  had 
business  dealings  with  Stockwell.  Within  a  period  of  four 
months  immediately  preceding  this  transaction,  the  plaintiff 
indorsed  and  negotiated  drafts  by  Stockwell  on  the  defendant 
for  seventy-five  thousand  dollars.  Two  days  after  the  drafts 
in  suit  were  negotiated,  it  indorsed  and  negotiated  drafts  by 
and  on  the  same  parties  for  thirty  thousand  dollars  more.  All 
these  drafts  were  in  fact  accepted  by  the  defendant,  and  paid 
at  maturity. 

In  December,  1876,  when  Stockwell  presented  to  the  plain- 
tiff" drafts  to  the  amount  of  forty-five  thousand  dollars,  he,  in 
legal  effect,  represented  that  he  had  funds  in  the  defendant's 
hands;  he  virtually  pledged  his  honor  and  reputation  as  a 
business  man  that  it  was  true.  When  the  defendant  accepted 
those  drafts,  it  admitted  that  those  representations  were  true. 
The  same  representations  were  repeated  by  the  parties  in  Feb- 
ruary, 1877,  and  on  March  28th.  All  those  representations 
were,  for  all  the  purposes  of  this  case,  true;  for  those  drafts 
were  all  paid  at  maturity.  Is  it  strange  that  the  same  repre- 
sentations made  on  the  twenty-sixth  day  of  March  should  be 
believed? 

It  is  not  found  that  Webster  knew  that  the  drafts  were 
drawn  for  the  purpose  of  raising  money  to  pay  to  Hume  Web- 
ster &  Co.  If  he  had  not  such  knowledge,  how  could  he  be 
justly  chargeable  with  a  fraudulent  intent? 

Again,  there  is  no  finding  that  Stockwell  was  then  in  poor 
credit,  or  that  Webster  or  Hume  Webster  &  Co.  supposed  that 
they  were  in  danger  of  losing  by  him.  Hume  Webster  &  Co. 
had,  in  the  space  of  about  one  month,  paid  his  checks  to  an 
amount  exceeding  one  hundred  thousand  dollars.  The  plain- 
tiff, during  the  same  month,  indorsed  his  drafts  to  the  amount 
of  seventy-five  thousand  dollars.  These  facts  afford  some 
ground  for  believing  that  both  parties  regarded  him  as  trust- 


Jan.  1887.]    Credit  Co.  v.  Howe  Machine  Co.  131 

worthy.  If  they  did,  pray  what  reason  had  they  for  colluding 
with  Stockwell  for  the  purpose  of  drawing  money  illegally  and 
unjustly  from  the  defendant? 

Moreover,  the  circumstances  relied  on  as  showing  fraud  are 
in  themselves  weak,  and  will  hardly  justify,  much  less  require, 
the  inference  claimed  for  them. 

"We  may  add  that  if  bills  of  excftange,  which  are  supposed 
to  be  the  highest  type  of  negotiable  instruments,  can  be  suc- 
cessfully impeached  by  such  circumstances  as  exist  in  this 
case,  the  integrity  of  all  such  instruments  must  be  seriously 
impaired,  and  their  usefulness  as  a  circulating  medium  well- 
nigh  destroyed. 

In  the  next  place,  it  is  claimed  that  the  plaintiff  is  not  a 
bona  fide  holder,  because  the  defendant's  treasurer  had  no 
power  to  accept  accommodation  drafts;  that  the  corporation 
itself  had  no  such  power;  and  that  the  plaintiflF  was  bound  to 
take  notice  of  the  powers  of  a  corporation  and  its  ofiBcers,  and 
of  the  extent  of  their  authority. 

On  account  of  the  complex  character  of  this  proposition,  it 
can  only  be  properly  considered  by  treating  each  branch  of  it 
separately.  We  may  admit  generally  that  the  treasurer  had 
no  authority  to  accept  accommodation  paper,  and  that  the 
directors  had  no  power  to  confer  upon  him  such  an  authority. 
But  in  order  to  prevent  injustice  and  maintain  the  integrity  of 
mercantile  paper,  it  is  necessary  to  limit  the  application  of  the 
principle  to  parties  with  notice.  This  limitation  necessarily 
results  from  the  fact  that  every  business  corporation  has  power 
to  deal  in  negotiable  paper  in  the  line  of  its  business.  As  such 
paper  does  not  ordinarily  show  on  its  face  the  circumstances 
of  its  origin  or  the  purpose  for  which  it  is  made,  it  becomes 
important  to  distinguish  those  who  have  notice  of  its  charac- 
ter and  purpose  from  those  who  have  not.  To  say  indiscrimi- 
nately that  the  holder  of  accommodation  paper  made  by  a 
corporation  cannot  be  a  bona  fide  holder  simply  because  it  is 
accommodation  paper,  ignores  this  important  distinction,  and 
amounts  practically  to  begging  the  question. 

We  pass  now  to  the  second  branch  of  the  proposition, — 
that  persons  dealing  in  commercial  paper  of  a  corporation  are 
bound  to  take  notice  of  the  extent  of  its  power.  Here,  too,  we 
may  properly  admit  that  the  proposition  is  a  correct  one;  but 
care  should  be  exercised  in  its  application  not  to  extend  it 
beyond  ity  appropriate  limits.  To  clearly  understand  those 
limitt).  a  distinction  is  to  be  observed  between  the  terms  of  a 


132  Credit  Co.  v.  Howe  Machine  Co.  [Conn. 

power  and  the  circumstances  under  which  it  is  exercised. 
Parties  may  well  be  required  to  take  notice  of  the  former; 
but  to  require  them  to  have  knowledge  of  the  latter  would 
in  many  cases  result  in  gross  injustice.  Especially  is  this  so 
where  the  agent  or  officer  of  the  corporation  which  exercises  the 
power  at  the  same  time  represents  the  corporation,  and  speaks 
for  it  in  giving  information  as  to  the  circumstances  under 
which  it  is  exercised.  No  better  illustration  is  needed  than 
the  case  at  bar.  The  treasurer  of  the  defendant  was  the  officer 
specially  authorized  by  vote  of  the  directors  to  accept  bills  of 
exchange;  at  the  same  time,  by  virtue  of  his  office  he  was  the 
person  held  out  by  the  corporation  as  the  proper  one  to  in- 
form holders  whether  the  drawer  draws  against  funds.  The 
corporation  virtually  says,  "  You  may  safely  trust  the  word 
of  our  treasurer  on  that  subject."  When  he  speaks,  the  cor- 
poration speaks.  By  accepting  the  draft  he  declares  that  the 
drawer  has  funds,  and  that  is  the  declaration  of  the  corpora- 
tion. Mercantile  paper  does  not  require  those  who  would  be- 
come its  holders  to  go  to  the  acceptor  and  insult  him  by  the 
question,  Did  you  tell  the  truth  when  you  accepted  that  paper? 
They  have  a  right  to  assume  that  he  tells  the  truth,  and  to  act 
accordingly.  If  the  treasurer  in  fact  misrepresents  the  cor- 
poration, the  corporation  and  not  the  person  who  trusts  him 
should  bear  the  loss. 

An  instructive  and  very  interesting  case  on  this  subject  is 
Farmers'  and  Mechanics'  Bank  v.  Butchers'  and  Drovers'  Bank, 
16  N.  Y.  125.  The  defendant's  counsel  cite  that  case,  and 
quote  from  it  this  sentence:  "  One  who  deals  with  an  agent 
has  no  right  to  confide  in  the  representation  of  the  agent  as 
to  the  extent  of  his  powers."  The  court,  however,  clearly 
recognize  the  distinction  to  which  we  have  adverted, — namely, 
between  the  terms  of  a  power,  and  extrinsic  facts  which  may 
or  may  not,  according  to  the  circumstances,  affect  the  rights 
of  third  persons  when  the  power  is  exercised.  That  was  an 
action  on  a  certified  check.  The  defense  was,  that  the  bank 
had  no  funds  of  the  drawer.  Immediately  following  the 
sentence  quoted  the  court  uses  this  language:  "  If,  there- 
fore, a  person,  knowing  that  the  bank  has  no  funds  of  the 
drawer,  should  take  a  certified  check,  upon  the  representation 
of  the  cashier  or  other  officer  by  whom  the  certificate  was 
made  that  he  was  authorized  to  certify  without  funds,  the 
bank  would  not  be  liable.  But  in  regard  to  the  extrinsic  fact 
whether  the  bank  has  funds  or  not,  the  case  is  difi'erent.    That 


Jan.  1887.]    Credit  Co.  v.  Howe  Machine  Co.  133 

is  a  fact  of  which  a  stranger,  who  takes  a  check  certified  by 
the  teller,  cannot  be  supposed  to  have  any  means  of  knowl- 
edge. Were  he  held  bound  to  ascertain  it,  the  teller  would 
be  the  most  direct  and  reliable  source  of  knowledge,  and  he 
already  has  his  written  representation  upon  the  face  of  the 
check.  If,  therefore,  one  who  deals  with  an  agent  can  be 
permitted  to  rely  upon  the  representation  of  the  agent  as  to 
the  existence  of  a  fact,  and  to  hold  the  principal  responsible 
in  case  the  representation  is  false,  this  would  seem  to  be  such 
a  case.  It  is,  I  think,  a  sound  rule,  that  where  the  party 
dealing  with  an  agent  has  ascertained  that  the  act  of  the 
agent  corresponds  in  every  particular,  in  regard  to  which  such 
party  has  or  is  presumed  to  have  any  knowledge,  with  the 
terms  of  the  power,  he  may  take  the  representation  of  the 
agent  as  to  any  extrinsic  fact  which  rests  peculiarly  within 
the  knowledge  of  the  agent,  and  which  cannot  be  ascertained 
by  a  comparison  of  the  power  with  the  act  done  under  it." 

This  case  also  holds  that  a  certified  check  is  substantially 
an  accepted  bill  of  exchange.  The  principle  involved  there- 
fore applies  to  this  case,  and  is  an  authority  against  the  de- 
fendant. It  is  true  that,  in  the  case  at  bar,  the  bills  of 
exchange  were  not  accepted  when  the  plaintifif  indorsed  them; 
but  we  apprehend  that  that  will  not  prevent  the  application  of 
the  principle.  It  is  no  uncommon  thing  for  the  payee  to  in- 
dorse a  bill  and  put  it  in  circulation  before  acceptance.  The 
fact  that  he  does  so  is  in  itself  no  evidence  of  bad  faith. 

The  principle  seems  to  be  that  a  person  dealing  with  a  cor- 
poration is  bound  to  know  whether  or  not  the  officer  or  agent 
who  represents  it  and  acts  in  its  name  is  authorized  so  to  do. 
If  he  is,  and  the  act  is  within  the  apparent  scope  of  his  au- 
thority, he  is  not  bound  to  have  knowledge  of  extrinsic  facts 
making  it  improper  for  him  to  act  in  that  case. 

We  must  conclude,  therefore,  that  the  fact  that  the  drawer 
had  no  funds  in  the  hands  of  the  drawee  at  the  time  these  bills 
were  drawn  and  negotiated,  that  fact  being  unknown  to  the 
plaintiff,  is  not  a  sufficient  reason  for  holding  that  the  plaintiff 
is  not  a  bona  fide  holder. 

It  is  further  claimed  that  the  plaintiff  is  not  a  bona  fide 
holder  for  value  on  account  of  the  use  which  was  made  of  the 
proceeds  of  these  bills,  they  having  been  paid  to  Hume  Web- 
ster &  Co.  to  apply  on  a  debt  due  that  firm  from  Stockwell. 
This  argument  assumes,  what  we  cannot  admit,  that  the  pay- 
ment was  equivalent  to  a  payment  to  the  plaintiff  on  a  debt 


134  Credit  Co.  v.  Howe  Machine  Co.  [Conn. 

due  it.  The  firm  of  Hume  Webster  &  Co.  and  the  plaintiff 
are  in  fact  and  in  law  t^o  distinct  persons;  and  we  must  so 
regard  them  until  fraud  or  collusion  is  established  which  will 
make  one  responsible  for  the  acts  of  the  other.  If  the  plaintiff 
was  guilty  of  no  fraud, — and  for  reasons  already  suggested  we 
must  assume  that  it  was  not, — then  the  plaintiff  in  good  faith 
paid  full  value  for  these  bills.  If  we  were  at  liberty  to  regard 
this  as  a  scheme  devised  by  Webster  (acting  in  the  name  of 
the  plaintiff,  but  really  for  Hume  Webster  &  Co.)  and  Stock- 
well,  to  defraud  the  defendant  for  the  benefit  of  Hume  Web- 
ster &  Co.,  we  might  be  justified  in  holding  that  the  plaintiff 
is  not  a  bona  fide  holder.  But  we  cannot  reach  that  result  as 
a  legal  conclusion  from  the  facts  as  they  appear.  The  main 
fact,  the  one  thing  essential  to  that  conclusion, — an  arrange- 
ment to  that  effect  then  or  previously  made, — is  not  found. 

For  these  reasons  a  majority  of  the  court  are  of  the  opinion 
that  the  plaintiff  is  entitled  to  recover,  and  the  superior  court 
is  so  advised. 


Pakk,  C.  J.,  dissented,  being  of  opinion  that  the  plaintiff  corporation  was 
not  a  bona  fide  holder  of  the  drafts  in  question,  for  the  following  reasons,  in 
brief:  "The  defendant  corporation  was  limited  by  its  charter  to  such  use  of 
mercantile  paper  as  might  be  necessary  in  the  prosecution  of  its  business; 
and  the  plaintiff  was  bound  to  take  notice  of  this  limitation,  and  conduct 
itself  accordingly.  The  plaintiff  knew,  through  Hume  Webster,  its  man- 
aging director,  that  the  proceeds  of  these  drafts  were  not  to  be  used  by  the 
defendant  in  the  prosecution  of  its  business,  but  were  to  be  used  by  the 
drawer,  A.  B.  Stock  well,  for  his  own  individual  purposes  in  London,  while 
engaged  in  speculating  in  stocks."  He  concludes:  "I  think  the  declara- 
tions of  Stockwell  gave  Webster  clearly  to  understand  that  the  drafts  were 
accommodation  paper,  and  that  consequently  the  plaintiff  was  not  a  bona  fide 
holder  of  them,  and  judgment  should  be  rendered  for  the  defendant." 

Nature  of  Acceptor's  Contract:  Parks  v.  Ingram,  55  Am.  Dec.  153; 
lleaverin  v.  Donnell,  45  Id.  302;  Sioope  v.  Boss,  80  Id.  5G7,  and  note  570; 
Kupfer  V.  Eank  qf  Galena,  85  Id.  309;  acceptance  for  honor:  Smith  v.  Sawyer^ 
92  Id.  576,  and  note  579;  acceptance  may  be  by  parol:  Jarvis  v.  Wilson,  33 
Am.  Rep.  18. 

Acceptance  op  Bill  upon  CoNDrnoN,  and  Effect  of:  Ford  v.  AngeU 
rodt,  88  Am.  Dec.  174,  and  note  178;  Wells  v.  Brigham,  52  Id.  750. 

Presumption  from  Acceptance  of  Bill,  that  Acceptor  has  Funds  of 
Drawer  in  his  Hands,  may  be  Rebutted,  as  between  drawer  and  ac- 
ceptor, by  showing  that  the  bill  was  accepted  and  paid  for  the  drawer's 
accommodation:  Griffith  v.  Beed,  34  Am.  Dec.  267,  and  note  270. 

Acceptance  of  Bill  Binds  Acceptor  in  Favor  of  Indorsee  for  Value, 
notwithstanding  that  the  consideration  upon  which  he  accepted  was  an  exec- 
utory contract  which  was  not  performed,  and  that  the  indorsee  took  with 
notice  of  the  nature  of  the  consideration,  though  not  of  the  breach:  Davi» 
v.  McCready,  72  Am.  Dec.  461. 


Jan.  1887.]    Credit  Co.  v.  Howe  Machine  Co.  tSS- 

To  Action  on  Bills  ot  Exchange  Accepted  by  Defendant,  He  can- 
not Interpose  Defense  that  the  same  were  the  property  of  a  bank,  and 
M'ere  transferred  or  pledged  to  the  plaintiff  aa  security  for  a  loan  by  the 
cashier,  who  had  no  authority  to  so  transfer  or  pledge  them:  City  Bank  v. 
PerUm,  86  Am.  Dec.  332. 

Acceptance  op  Negotiable  Paper  is  Prima  Facie  Evidence  of  Pay- 
ment OF  AccotTNT  FOR  WHICH  It  IS  GiVEN:  Paine  V.  Dicinel,  87  Am.  Dec. 
533. 

Acceptor  of  Accommodation  Bill  is  not  Discharged  by  the  failure  of 
the  holder  to  bring  suit  thereon  against  the  drawer  on  request  of  the  ac- 
ceptor: Diversy  v.  Moor,  74  Am.  Dec.  157. 

Acceptor  of  Forged  Bill  is  Bound  to  Know  Drawer's  Handwritino, 
and  if  he  accepts  the  bill  and  pays  it  to  a  holder  hoiM  fide  and  for  a  valuable 
consideration,  he  cannot  recover  back  the  money:  Stout  v.  Benoist,  90  Am. 
Dec.  466. 

It  is  No  Defense  to  Suit  against  Acceptor  of  Draft  Which  has 
BEEN  Discounted,  and  upon  which  money  has  been  advanced  by  the  plain- 
tiff, that  the  draft  was  accepted  for  the  accommodation  of  the  drawer:  Davis 
V.  Randall,  15  Am.  Rep.  146. 

Law  Looks  with  Favor  upon  Holder  of  Negotiable  Paper,  and  re- 
quires very  cogent  evidence  to  convict  him  of  bad  faith:  New  Orleans  Canal 
etc.  Co.  V.  Templeton,  96  Am.  Dec.  385;  Park  Bank  v.  Waison,  1  Am.  Rep. 
573;  Chapman  v.  Rose,  15  Id.  401;  Harger  v.  Worrall,  25  Id.  206. 

Defenses  Available  to  Acceptor  of  Negotiable  Paper.  —  The  case  of 
Webster  <k  Co.  v.  Hovx  MacJiine  Co.,  54  Conn.  394,  was  an  action  upon  an  ac- 
ceptance, and  involved  the  same  general  facts  as  the  principal  case.  The 
additional  facts  solely  applicable  to  the  former  are,  that  in  March,  1877,  the 
plaintiffs  were  doiag  business  as  bankers  in  London,  England;  on  March  28, 
1877,  A.  B.  Stockwell  drew  upon  the  defendant  two  drafts  for  ten  thousand 
dollars  each,  payable  in  sixty  days,  addressed  to  the  defendant  at  its  office 
in  the  city  of  New  York,  and  both  drafts  wore  accepted  by  Levi  S.  Stock- 
well,  as  treasurer  of  the  defendant  company.  On  March  28,  1877,  A.  B. 
Stockwell  was  indebted  to  the  plaintiffs  iu  a  much  larger  amount  than  these 
drafts,  and  they  took  the  drafts  from  Stockwell,  indorsed  and  sold  them, 
and  placed  the  proceeds  to  his  credit  in  his  account  with  them.  When 
the  drafts  became  due  and  payable,  one  of  them  was  paid,  but  the  other  was 
not,  and  was  duly  protested,  and  the  plaintiffs  as  payees  and  indorsers  took 
it  up,  and  brought  this  action  thereon.  The  court  held  that,  as  the  defend- 
ant had  its  office  and  place  of  business  in  New  York,  where  the  acceptance 
was  made,  and  where  the  bill  was  made  payable,  the  contract  was  governed 
by  the  law  of  the  state  of  New  York;  and  that  law  was  declared  to  be,  "  that 
where  the  acceptance  of  a  bill  by  the  treasurer  of  a  private  manufacturing 
corporation  is  an  act  of  fraud  upon  the  corporation,  or  when  the  same  lias 
been  unduly  obtained,  or  the  procurement  and  negotiation  thereof  is  a  wrong 
and  a  loss  inflicted  upon  the  cori)oration  by  the  drawer  and  the  treasurer 
jointly,  the  burden  is  upon  the  person  suing  upon  it  to  prove  that  he  is  a 
honajide  holder;  and  that  he  cannot  be  such  if  he  received  it  upon  a  pre- 
existing debt,  without  parting  with  any  right  or  property  of  value,  and  can 
lose  nothing  if  he  does  not  recover":  Carpenter  and  Granger,  J.J.,  dissent- 
ing. The  acceptance  for  accommodation  of  the  drawer,  by  the  treasurer 
of  a  private  manufacturing  corporation,  is  held  to  be  a  legal  fraud  upon  tha 
corporation,  even  if  it  be  done  with  tlic  asr!cnt  of  stockholders  and  directors* 


136  Credit  Co.  v.  Howe  Machine  Co.  [Conn. 

And  by  the  law  of  New  York,  "the  holder  of  an  acceptance  thus  fraudu- 
lently made  cannot  enforce  it,  if  he  merely  received  and  applied  it  upon  a 
pre-existing  debt,  and  did  not  part  with  any  right  or  property  on  the  faith 
thereof.  Such  application  is  the  legal  equivalent  of  notice  of  the  vice  in  the 
acceptance,  puts  the  holder  beyond  the  pale  of  bona  Jidea,  and  previous  pay- 
ments to  him  as  a  bona  Jide  holder  do  not  harden  into  a  usage  binding  upon  the 
corporation  after  he  ceases  to  occupy  that  position."  The  court  fully  reviews 
the  New  York  cases  bearing  on  the  question,  and  cites  the  following,  among 
others,  in  support  of  the  rule  as  above  stated:  Philbrick  v.  Dallett,  2  Jonea 
&  S.  370,  12  Abb.  Pr.,  U.  S.,  419,  43  How.  Pr.  419,  holding  that  where  a  draft 
is  taken  on  account  of  an  antecedent  debt,  without  surrendering  anything,  the 
subsequent  acceptors  are  not  precluded  from  showing  that  their  acceptance  was 
procured  by  the  fraud  of  the  drawers,  and  was  wholly  without  consideration: 
Lawrence  v.  Clark,  56  N.  Y.  128;  Turner  v.  Treadway,  53  Id.  G50;  Weaver  v. 
Barden,  49  Id.  286;  Comstock  v.  Hier,  73  Id.  2G9.  Compare  Jiisth  v.  National 
Bank,  45  How.  Pr.  492;  4  Jones  &  S.  273;  56  N.  Y.  478.  Neverthe- 
less, in  Webster  <k  Co.  v.  Howe  Machine  Co.,  supra,  the  court  sustains  the 
doctrine  of  the  principal  case,  that  where  the  holder  of  such  an  acceptance 
takes  it  without  notice,  that  it  was  for  the  accommodation  of  the  drawer, 
and  the  acceptance  was  by  an  officer  of  the  company  authorized  to  accept  if 
the  drawer  had  funds  in  the  company's  hands,  the  holder  is  not  affected  by 
the  extrinsic  fact  of  want  of  funds,  and  can  recover  iipon  the  acceptance  if 
he  is  a  bona  Jide  holder  for  value;  for,  as  between  such  holders  of  negotiable 
paper  without  notice,  and  stockholders  of  a  corporation,  the  law  gives  pref- 
erence to  the  former.  So,  in  a  recent  case  in  New  Jersey,  the  court  states 
it  to  be  the  general  doctrine  of  the  law  that  where  a  corporation  has  power, 
under  any  circumstances,  to  issue  negotiable  paper,  a  bona  Jide  holder  has  a 
right  to  presume  that  it  was  issued  under  the  circumstances  which  give  the 
requisite  authority,  and  the  doctrine  is  applied  to  commercial  paper  made  by 
a  corporation  for  the  accommodation  of  a  third  person  when  in  the  hands  of 
a  bona  Jide  holder,  who  has  discounted  it  before  maturity  on  the  faith  of  ita 
being  business  paper:  National  Bank  v.  Young,  5  Cent.  Rep.  113  (N.  J.),  cit- 
ing Bird  V.  Daggett,  97  Mass.  494;  Monument  Nat.  Bank  v.  Olohe  Worhi,  101 
Id.  57;  3  Am.  Rep.  322;  Mechanics'  Bank  Assoc,  v.  Wliite  Lead  Co.,  35  N.  Y. 
505.  The  right  of  such  a  holder  to  recover  can  be  defeated  only  by  proof  of 
Buch  circumstances  as  show  that  he  took  the  paper  with  knowledge  of  some 
infirmity  in  it,  or  with  such  suspicion  with  regard  to  its  validity  as  that  his 
conduct  in  taking  it  was  fraudulent:  National  Bank  v.  Young,  supra. 

As  a  general  proposition,  an  acceptance  can  only  be  discharged  by  pay- 
ment, or  a  release,  except  in  cases  where  to  enforce  the  payment  by  the 
acceptor  would  be  in  violation  of  the  agreement  of  the  parties  at  the  time 
of  the  acceptance:  Cronise  v.  Kellogg,  20  111.  11.  In  a  suit  against  the  ac- 
ceptor, he  will  not  be  permitted  to  insist  that  there  was  no  consideration  for 
the  acceptance:  Nmoak  v.  Excelsior  Stone  Co.,  78  Id.  307;  Law  v.  Br  inker,  6 
Col.  555;  and  see  Vanstrum  v.  Liljengren,  33  N.  W.  Rep.  555  (Sup.  Ct. 
Minn.);  Clement  v.  Everett,  12  N.  H.  317;  Corbett  v.  Clark,  45  Wis.  403;  30  Am. 
Rep.  763;  Jarvis  v.  Wilson,  46  Conn.  90;  33  Am.  Rep.  IS.  If  one  accepts  a 
bill  to  enable  the  drawer  to  obtain  credit  or  money,  though  there  is  no  con- 
sideration between  the  drawer  and  acceptor,  and  though  the  subsequent 
holder  for  value  knows  it  to  be  accommodation  paper  at  "the  time  he  takes  it, 
he  can  enforce  it  against  the  acceptor:  ArnoUl  v.  Sprague,  34  Vt.  402;  Davis 
V.  Randall,  115  Mass.  547;  15  Am.  Rep.  146;  Marsh  v.  Low,  55  Ind.  271.  lu 
other  words,  one  who  accepts  for  the  accommodation  of  another,  and  thereby 


Jan.  1887.]    Credit  Co.  v.  Howe  Machine  Co.  137 

{irocnren  a  benefit  to  such  other,  cannot  refuse  to  meet  his  obligation  to  him 
vrho  conferred  such  benetit  because  of  want  of  consideration:  Meggett  v. 
Baum,  57  Miss.  22,  27;  Hamilton  v.  Catchings,  58  Id.  92.  So  the  obligation 
of  an  acceptor  is  an  express  one,  and  the  legal  effect  of  an  acceptance,  as  an 
absolute  contract  to  pay,  cannot  be  varied  by  parol.  It  is  not  competent  for 
the  acceptor  to  contradict  the  written  contract  by  proof  of  an  oral  agree- 
ment that  he  accepted  upon  the  condition  that  he  should  not  be  called  upon 
to  pay  according  to  the  tenor  of  the  paper:  Wright  v.  Morse,  9  Gray,  337; 
Davis  V.  Randall,  115  Mass.  647;  15  Am.  Rep.  146;  Heaverin  v.  Donnelly  7 
Smedes  &  M.  244;  45  Am.  Dec.  302.  Thus  the  drawee  of  a  bill  of  exchange, 
drawn  by  the  "  Kanawha  and  Ohio  Coal  Co.,"  was  described  as  "John  A. 
Robinson,  Agt.,"  and  it  was  accepted  by  him  as  "John  A.  Robinson,  Agent 
K.  &  O.  C.  Co. ";  and  it  was  held  that  the  acceptance  was  the  personal  obli- 
gation of  John  A.  Robinson,  and  that  in  a  suit  upon  the  acceptance  by  an 
indorsee  against  him  parol  evidence  was  not  admissible,  in  the  absence  of 
fraud,  accident,  or  mistake,  to  show  that  the  defendant  intended  to  bind  the 
drawer  as  his  principal,  and  that  this  was  known  to  the  plaintiff  when  it 
acquired  the  paper:  RMnson  v.  Kanawha  Valley  Bank,  44  Ohio  St.  441;  68 
Am.  Rep.  829.  But  parol  evidence  is  clearly  admissible  to  explain  an  accept- 
•nee  which  is  ambiguous  on  its  face:  Gallagher  v.  Black,  44  Me.  99;  Shackle- 
ford  r.  Hooker,  54  Miss.  716;  Lamson  v.  French,  25  Wis.  37.  And  it  should 
be  remembered  that  a  bill  of  exchange  may  be  accepted  orally,  where  a  stat- 
ute does  not  require  the  acceptance  to  be  in  writing:  Dunovan  v.  Flynn,  118 
Mass.  539;  Jarvisv.  Wilson,  46  Conn.  90;  33  Am.  Rep.  18;  and  if  a  bill  with 
a  parol  acceptance  comes  into  the  hands  of  a  party,  although  he  does  not 
know  of  that  acceptance,  he  may  avail  himself  of  it  afterwards  when  it 
comes  to  his  knowledge:  Spaulding  v.  Andrews,  48  Pa.  St.  411.  And  the 
▼alidity  of  a  parol  promise  to  accept  an  existing  or  non-existing  bill  has  been 
maintained:  Nelson  v.  Fi7-8t  Nat.  Bank,  48  111.  36;  but  see  Bank  of  Ireland  v. 
Archer,  1 1  Mees.  &  W.  385.  But  in  order  that  one  may  be  held  liable  aa 
acceptor  of  a  bill,  drawn  in  pursuance  of  a  promise  to  accept,  and  upon  the 
faith  of  which  the  holder  has  advanced  money,  it  is  necessary  that  the  bill 
should  be  drawn  within  a  reasonable  time  after  the  promise  is  made,  and  the 
promise  must  so  describe  the  bill  that  there  can  be  no  doubt  of  its  applica- 
tion to  it:  CooUdge  v.  Payson,  2  Wheat.  66;  Cassel  v,  Dows,  1  Blatchf.  336; 
Carnegie  v.  Morrison,  4  Met.  40G;  LyncJis  Case,  52  Md.  270.  And  one  cannot 
be  held  liable  for  a  breach  of  promise  in  not  accepting,  unless  there  was  a 
promise  to  accept  at  the  time  the  bill  was  drawn:  First  Nat.  Bank  v.  Clark, 
61  Id.  400;  48  Am.  Rep.  114;  and  see  Brink-man  v.  Hunter,  72  Mo.  172;  39 
Am.  Rep.  492;  Bissell  v.  Lewis,  4  Mich.  450;  and  the  party  sought  to  be 
charged  should  be  permitted  to  show  all  that  was  said  and  done  to  determine 
whether  be  assented  to  the  request  to  accept:  Cook  v.  Baldwin,  120  Mass. 
317. 

According  to  the  later  English  authorities,  the  acceptor  of  a  bill  for  the 
accommodation  of  the  drawer  sustains  the  relation  of  surety  to  him,  and  is 
entitled  to  all  the  rights  of  one  occupying  that  position  in  any  case:  See 
Ewin  y.  Lancaster,  0  Best  &  S.  572;  Baily  v.  Edwards,  4  Id.  701;  FUtclter  v. 
Ilentli,  7  Bam.  Sl  C.  617.  In  accordance  with  this  view,  it  was  held  that  an 
accommodation  acceptor  is  released  by  a  contract  of  forbearance  to  the 
drawer,  made  by  the  holder  of  the  bill,  with  knowledge  of  the  fact  that  the 
acceptance  was  for  accommodation:  Meggelt  v.  Baum,  67  Miss.  22.  But 
the  weight  of  the  American  authorities  is  to  the  efifect  that  an  accommodation 
Acceptor  occupies  the  same  position  a^  one  who  accepts  with  funds  ais  to  all 


138  Gbissell  v.  Housatonic  R.  R.  Co.  [Conn. 

persons  who  receive  the  bill  for  value,  whether  they  know  that  it  was  an  ac- 
commodation acceptance  or  not.  Even  if  the  holder  knew  at  the  time  he  re- 
ceived the  bill  that  it  was  accepted  for  accommodation,  his  rights  and  duties 
are  in  no  respect  altered,  and  no  release  of  an  indorser  or  drawer  will  dis- 
charge the  acceptor:  Cronise  v.  Kellor/fj,  20  111.  13;  Claremont  Bank  v.  Wood, 
10  Vt.  182;  Lambert  v.  Sanciford,  2  Blackf.  137;  WMte  v.  Hopkins,  3  W.  Va. 
101;  Hansborough  v.  Oray,  3  Gratt.  356;  Lewis  v.  Handiman,  2  Pa.  St.  416; 
Stephens  v.  Monongahela  Nat.  Bank,  88  Id.  157. 


Grissell  V.  HousATONio  Kailroad  Company. 

[54  Connecticut,  447.] 

Statutk  Making  Railroad  Companies  Liable  in  Damages  fob  Injury 
Done  to  "Building  or  Other  Property,"  by  a  fire  communicated  by 
their  locomotives,  without  contributory  negligence  on  the  part  of  the 
owner  of  the  property,  and  which  gives  the  railroad  company  an  in- 
surable interest  in  the  property  liable  to  be  injured,  is  not  unconstitu- 
tional and  invalid,  either  as  denying  to  such  companies  the  equal 
protection  of  the  laws,  or  as  taking  away  their  property  without  due 
process  of  law,  or  as  impairing  their  rights  under  their  charters  to  use 
fire,  steam,  and  locomotive-engines.  Such  statute  is  valid,  even  in  its 
application  to  pre-existing  railroad  companies. 

Legislature  may  Depart  prom  Common-law  Principle,  that  for  a  law- 
ful, reasonable,  and  csireful  use  of  property  the  owner  cannot  be  made 
liable,  where  protection  to  persons  or  property  may  require  such  depart- 
ure. 

Constitutional  Law.  —  One  using  extrahazardous  materials  or  instrumen- 
talities may  be  made  to  bear  the  risk  and  pay  the  loss  thereby  occasioned 
to  the  property  of  another,  if  there  is  no  fault  on  the  part  of  the  latter, 
even  though  negligence  on  the  part  of  the  former  cannot  be  proved. 

Expression  "Building  or  Other  Property."  Used  in  Connecticut 
Statute,  Making  Railroad  Companies  Liable  for  fires  caused  by 
their  locomotives,  without  contributory  negligence  on  the  part  of  the 
owner  of  the  property,  includes  fences,  growing  trees,  and  herbage. 
The  provision  in  the  statute,  giving  the  railroad  company  an  insurable 
interest  in  the  property  liable  to  be  injured,  does  not  limit  the  liability 
of  the  company  for  injury  to  property  such  as  is  ordinarily  regarded  as 
insurable. 

Action  for  the  recovery  of  damages  for  injuries  to  the  plain- 
tiff's property  resulting  from  fire  communicated  by  the  loco- 
motive of  the  defendant  company.  The  verdict  was  for  the 
plaintiff,  and  the  defendant  appealed.  The  material  facts 
appear  in  the  opinion. 

M.  W.  Seymour  and  H.  H.  Knapp,  for  the  appellant. 

/.  S.  TurriU,  for  the  appellee. 


Feb.  1887.]     Gkissell  v.  Housatonic  R.  R.  Co.  139 

By  Court,  Looms,  J.  This  action  is  founded  on  the  stat- 
ute of  1881  (Session  Laws  of  that  year,  chapter  92),  the  first 
section  of  which  is  as  follows:  "Where  an  injury  is  done  to  a 
building  or  other  property  of  any  person  or  corporation  by  a 
fire  communicated  by  a  locomotive-engine  of  any  railroad  cor- 
poration, without  contributory  negligence  on  the  part  of  the 
person  or  corporation  entitled  to  the  care  and  possession  of  the 
property  injured,  the  said  railroad  corporation  shall  be  held 
responsible  in  damages  to  the  extent  of  such  injury  to  the  per- 
son or  corporation  so  injured;  and  any  railroad  corporation 
shall  have  an  insurable  interest  in  the  property  for  which  it 
may  be  so  held  responsible  in  damages  along  its  route,  and 
may  procure  insurance  thereon  in  its  own  behalf." 

The  plaintiflF  was  the  owner  and  possessor  of  land  adjoining 
the  defendant's  railroad  track  in  the  town  of  New  Milford, 
and  certain  of  his  fences,  growing  trees,  and  herbage  thereon 
were  destroyed  by  fire  communicated  by  the  defendant's  loco- 
motive-engine. There  was  no  contributory  negligence  on  the 
part  of  the  plaintifi",  and  he  brought  this  suit  to  recover  dam- 
ages for  the  injury  received,  and  obtained  a  verdict  in  his 
favor  in  the  court  below. 

The  defendant  gives  six  distinct  reasons  for  his  appeal  to 
this  court,  but  none  of  them  can  avail  to  set  aside  the  plain- 
tiflf's  verdict  if  the  statute  is  valid,  and  can  be  construed  to 
cover  the  property  injured.  Our  discussion  therefore  will  be 
confined  essentially  to  these  two  points:  — 

1.  Is  the  statute  a  valid  one? 

The  defendant's  counsel,  in  his  argument,  presented  a 
powerful  arraignment  of  the  statute  as  denying  to  railroad 
corporations  the  equal  protection  of  the  laws,  in  that  it  makes 
them  liable  for  the  consequences  of  a  lawful  act  without  any 
fault  or  negligence,  and  as  taking  away  their  property  without 
due  process  of  law,  in  that  it  deprives  them  of  a  legal  defense, 
and  as  impairing  the  rights  given  them  by  their  charters, 
which  authorize  the  use  of  fire,  steam,  and  locomotive-engines, 
while  requiring  trains  to  be  run  for  the  benefit  of  the  public, 
for  the  unavoidable  consequences  of  which  acts  the  statute 
makes  them  liable.  The  several  counts  in  this  indictment 
seem  to  be  based  principally  upon  this  one  principle  of  the 
common  law,  that  for  a  lawful,  reasonable,  and  careful  use  of 
property  the  owner  cannot  be  made  liable. 

But  this  principle  is  not  so  wrought  into  the  constitution,  or 
into  the  very  idea  of  property,  that  it  cannot  be  departed  from 


l^W  Gbissell  v.  Housatonic  R.  R.  Co.  [Conn. 

by  the  legislature  where  protection  to  persons  or  property  may 
require  it. 

But  the  defendant  also  invokes  another  principle,  which,  it 
is  claimed,  the  statute  violates;  namely,  the  equal  protection 
of  the  law.  But  to  give  force  to  this  objection,  it  should  ap- 
pear that  a  burden  is  cast  on  railroad  corporations  from  which 
all  others  are  exempt  under  similar  circumstances.  There  can, 
of  course,  be  no  such  inequality  if  the  circumstances  are 
radically  different.  This  consideration  seems  to  have  been 
ignored  in  the  argument  for  the  defendant,  or  else  it  was 
erroneously  assumed  that  the  circumstances  were  similar. 
Some  of  the  cases  cited  in  behalf  of  the  defendant  will  illus- 
trate the  distinction  to  which  we  refer. 

In  Durkee  v.  City  of  Janesville,  28  Wis.  464,  9  Am.  Rep.  500, 
an  act  had  been  passed  providing  that  the  city  of  Janesville 
should  be  holden  to  pay  no  costs  in  any  action  brought 
against  it  to  set  aside  any  tax  assessment  or  tax  deed,  or  to 
prevent  the  collection  of  any  tax.  The  act  was  held  void,  be- 
cause it  exempted  one  corporation  by  name  from  a  burden 
from  which  no  other  was  exempt  under  like  circumstances, 
and  it  enabled  the  city  to  recover  its  own  costs  if  it  recovered 
judgment,  but  denied  it  to  the  other  party  to  the  same  litiga- 
tion in  case  judgment  was  recovered  against  the  city.  So  in 
Ohio  and  Mississippi  R.  R.  Co.  v.  Lackey,  78  111.  55,  20  Am. 
Rep.  259,  an  Illinois  statute  was  held  unconstitutional  and 
void  which  made  the  railroad  company  liable  for  all  the 
burial  expenses  and  coroner's  fees  incurred,  where  any  one 
happened  to  die  or  be  killed  in  any  way  in  the  cars  of  such 
railroad.  This  act  attempted  to  make  the  company  liable, 
though  a  person  might  die  from  a  mortal  sickness  which  was 
upon  him  when  he  entered  the  car,  or  by  his  own  hand,  or  in 
other  ways,  in  regard  to  which  the  company  would  have  no 
agency  whatever.  The  distinction  between  such  a  case  and 
the  one  at  bar  is  too  manifest  to  require  further  comment. 

The  only  case  cited  which  supports  the  defendant's  position 
in  the  least  is  the  case  of  Zeigler  v.  South  etc.  Alabama  R.  R.  Co.y 
58  Ala.  594,  where  a  statute  of  that  state  was  held  unconstitu- 
tional which  declared  that  railroad  corporations  should  be 
liable,  and  make  compensation  to  the  owner  for  all  damage  to 
live-stock  caused  by  their  locomotives  or  trains,  without  any 
reference  to  the  skill  or  diligence  with  which  the  train  was 
operated,  unless  there  was  some  contributory  negligence  on 
the  part  of  the  owner  other  than  permitting  the  stock  to  run 


Feb.  1887.J     Grissell  v.  Housatonic  R.  R.  Co.  141 

at  large.  There  might  be  a  difference  of  opinion  in  different 
jurisdictions  as  to  the  validity  of  such  legislation.  But  as- 
suming, for  the  sake  of  argument,  that  the  decision  was  right, 
there  is  an  important  distinction  between  the  two  cases. 
There  the  animals  injured  were  where  they  ought  not  to  have 
been,  —  trespassers  obstructing  the  defendant's  railroad  track, 
directly  exposing  the  defendant's  property  to  hazard  and  loss; 
here  the  property  injured  was  where  it  ought  to  have  been, — 
on  the  plaintiff's  own  premises,  occasioning  no  hazard  to  the 
railroad  company.  There,  too,  it  was  possible  for  the  owner 
to  have  kept  his  stock  on  his  own  premises,  where  they  would 
have  been  safe;  but  here  it  was  not  possible  for  the  plaintiff 
to  avoid  the  loss  that  he  suffered  by  any  act  of  his  own. 

It  is  a  mistake  to  suppose  that  it  necessarily  transcends  the 
limits  of  valid  legislation,  or  violates  the  principle  of  a  just 
equality  before  the  law,  if  the  one  using  extrahazardous  mate- 
rials or  instrumentalities,  which  put  in  jeopardy  a  neighbor's 
property,  is  made  to  bear  the  risk  and  pay  the  loss  thereby 
occasioned,  if  there  is  no  fault  on  the  part  of  the  owner  of  the 
property,  even  though  negligence  in  the  other  party  cannot  be 
proved.  If  the  statute  should  make  the  owner  of  a  vicious 
domestic  animal  liable  for  the  damage  it  might  occasion, 
without  proof  of  scienter,  or  knowledge  of  its  vicious  propen- 
sity, as  required  by  the  common  law,  we  do  not  think  the  act 
would  be  void.  Such  a  statute  would  only  be  a  new  applica- 
tion of  an  ancient  common-law  principle,  that  where  one  of 
two  innocent  persons  must  suffer  loss  from  an  act  done,  it  is 
just  that  it  should  fall  on  the  one  who  caused  the  loss,  rather 
than  upon  the  other,  who  had  no  agency  in  producing  it,  and 
could  not  by  any  means  have  avoided  it. 

An  ancient  statute  of  this  state,  which  has  been  very  often 
enforced,  makes  the  owner  of  dogs,  or  if  the  owner  is  a  minor 
or  an  apprentice,  the  parent,  guardian,  or  master,  liable  for 
all  the  damage  done  by  them,  irrespective  of  any  fault  or 
negligence  on  the  part  of  the  owner:  Gen.  Stats.,  p.  267,  sec. 
5.  Another  statute  (Gen.  Stats.,  p.  489,  sec.  6)  makes  one 
who  kindles  a  fire  on  his  own  or  any  land  liable  for  all  dam- 
age it  may  do  if  it  runs  upon  the  land  of  another,  and  proof 
of  negligence  is  not  required.  We  are  not  aware  that  the 
validity  of  any  of  these  statutes  has  been  called  in  question. 
The  dangerous  character  of  the  thing  used  is  always  to  be 
considered  in  determining  the  validity  of  statutory  regulations 
fixing  the  liability  of  parties  so  using  it.     Fire  has  always 


142  Grissell  r.  Housatonic  R  R.  Co.  [Conn. 

Leen  subject  to  arbitrary  regulations,  and  tbe  common  law  of 
England  was  more  severe  and  arbitrary  on  the  subject  than 
any  statute.  In  Rolle's  Abridgment  (Action  on  the  Case,  B, 
title  Fire),  it  is  said:  ''If  my  fire,  by  misfortune,  burns  the 
goods  of  another  man,  he  shall  have  his  action  on  the  case 
against  me.  If  a  fire  breaks  out  suddenly  in  my  house,  I  not 
knowing  it,  and  it  burns  my  goods,  and  also  my  neighbor's 
house,  he  shall  have  his  action  on  the  case  against  me.  So 
if  the  fire  is  caused  by  a  servant,  or  a  guest,  or  any  person 
who  entered  the  house  with  my  consent.  But  otherwise,  if 
it  is  caused  by  a  stranger  who  enters  the  house  against  my 
will." 

It  ought,  perhaps,  to  be  stated  that  this  has  not  been  adopted 
as  the  common-law  rule  in  the  United  States.  In  most  states, 
we  presume,  there  are  arbitrary  police  regulations  concerning 
the  transportation  or  deposit  of  gunpowder.  Would  the  con- 
stitutionality of  a  statute  be  questioned  that  should  make  one 
who  deposits  large  quantities  of  gunpowder  or  dynamite  on 
his  own  premises,  in  dangerous  proximity  to  the  property  of 
another,  liable  for  any  loss  thereby  occasioned  to  the  latter, 
without  proof  of  negligence? 

There  is  no  force  in  the  objection  that  the  statute  under 
consideration  unjustly  selects  only  railroad  corporations  to 
bear  the  burden  of  an  extraordinary  risk.  It  is  confined  to 
them  because  they  alone  have  the  privilege  of  taking  a  nar- 
row strip  of  land  from  each  owner,  without  his  consent,  along 
the  route  selected  for  the  track,  and  of  traversing  the  same  at 
all  hours  of  the  day  and  night,  and  at  all  seasons,  whether 
wet  or  dry,  with  locomotive-engines  that  scatter  fire  along  the 
margin  of  the  land  not  taken,  thereby  subjecting  all  com- 
bustible property  to  extraordinary  hazard  of  loss,  and  that, 
too,  for  the  sole  profit  of  the  corporation.  The  argument  for 
the  defendant  is  fallacious,  in  erroneously  assuming  that  the 
statute  denies  to  the  defendant  a  good  defense  which,  at  com- 
mon law,  all  others  would  have  under  similar  circumstances. 

In  Jones  v.  Festiniog  R'y  Co.,  L.  R.  3  Q.  B.  733,  in  a  suit 
against  an  unchartered  railway  company,  it  was  proved  by 
the  defendants  that  all  reasonable  precautions  had  been  taken 
to  prevent  the  emission  of  sparks  from  a  locomotive-engine 
used  by  them.  But  it  was  held,  nevertheless,  that  they  were 
liable,  on  the  ground  that  the  locomotive  was  a  dangerous 
engine  to  be  brought  and  used  by  the  defendants  even  upon 
their  own  premises,  and  that  they  must  bear  the  consequences 


Feb.  1887.J     Grissell  v.  Housatonic  R.  R.  Co.  143 

in  case  of  damage  to  others.  Wharton,  in  his  treatise  on  neg- 
ligence, section  868,  lays  down  the  same  doctrine  as  to  the 
liability  of  unchartered  companies  at  common  law. 

How,  then,  can  it  transcend  the  limits  of  just  and  valid 
legislation  to  attach  to  chartered  railroad  companies,  for  doing 
the  same  act,  under  the  same  circumstances,  the  same  liabil- 
ity, where  the  charter,  as  in  this  case,  is  an  open  one,  expressly 
made  subject  to  all  general  laws? 

In  Hooksett  v.  Concord  R.  R.  Co.,  38  N.  H.  242,  where  the 
construction  of  a  similar  statute  was  under  consideration, 
Eastman,  J.,  in  giving  the  opinion  of  the  court,  used  this  sug- 
gestive language:  "The  extraordinary  use  of  the  element  of 
fire,  by  which  the  property  of  individuals  situated  along  the 
lines  of  railroads  becomes  endangered  beyond  the  usual  and 
ordinary  hazard  to  which  it  is  exposed,  no  doubt  caused  the 

legislature  to  interfere By  this  exposure,  an  increased 

risk  of  loss  of  property  is  caused.  The  risk  must  be  borne  by 
some  one;  and  if  the  property  is  insured,  a  larger  premium 
must  be  paid.  Upon  whom  shall  this  risk  fall,  and  this 
burden  rest?  Upon  the  owners  of  the  property,  or  upon  the 
corporations  who  make  this  extraordinary  use  of  the  fire?  " 

The  only  answer,  it  seems  to  us,  which  a  due  sense  of  jus- 
tice can  dictate,  is  the  one  given  in  that  case, — that  the  re- 
sponsibility and  burden  should  rest  on  the  corporations.  No 
other  mode  of  adjusting  this  risk  can  be  suggested  so  just 
towards  all  parties  as  this.  Before  the  statute,  upon  taking 
land  for  railroad  purposes,  it  was  possible,  upon  the  appraisal, 
to  include  something  for  the  increased  risk  to  buildings  on  the 
land  not  taken,  confining  it,  however,  to  the  diminished  value 
of  the  remaining  property  caused  by  the  risk:  Pierce  on  Rail- 
roads, 215;  In  re  Utica  etc.  R.  R.  Co.,  56  Barb.  456;  Wilming- 
ton and  Reading  R.  R.  Co.  v.  Slauffer,  60  Pa.  St.  374.  But  it 
would  seem  extremely  difl&cult  to  make  any  just  appraisal 
even  on  this  limited  basis;  and  it  could  have  no  application 
to  buildings  afterwards  placed  on  the  land,  nor  to  buildings 
which  might  be  destroyed  by  fire  from  this  source  on  land 
more  remote  from  the  railroad,  no  part  of  which  was  taken 
or  appraised,  nor  to  any  personal  property  whatever.  And  it 
would  of  course  be  utterly  impracticable  to  assess  beforehand 
damages  for  property  that  might  be  destroyed  in  the  future. 

And  here  we  may  suggest  that  the  statute  under  considera- 
tion, though  often  characterized  as  arbitrary,  is  really  based  on 
ft  principle  quite  similar  to  that  which  allows  an  assessment  in 


144  Grissell  v.  Housatonic  R.  R.  Co.  [Conn. 

favor  of  the  land-owner,  founded  on  the  risk  of  fire  from  the 
same  source.  In  both  cases,  it  is  assumed  that  there  is  a  risk, 
and  that  it  is  justly  placed  on  the  corporation.  The  statute 
carefully  guards  the  interests  of  the  corporations  by  giving 
them  an  insurable  interest  in  all  the  property  for  which  they 
may  be  made  liable,  and  section  fourth  provides  that  no  ap- 
praisal of  damages  for  land  taken  or  injured  by  the  location 
or  construction  of  a  railroad  shall  hereafter  include  any  com- 
pensation for  the  increased  risk  to  any  building  outside  of 
Buch  location,  on  account  of  sparks  from  the  locomotive-engines 
on  such  railroad. 

This  last  provision  suggests  that  tbe  statute  is  not  quite  so 
equitable  in  its  application  to  the  defendant  company,  which 
established  its  railroad  before  the  statute  was  enacted,  as  to 
corporations  afterwards  formed.  It  can  of  course  derive  no 
benefit  from  this  provision,  except  as  to  land  it  may  have 
taken  since  the  enactment  of  the  statute.  The  record  is  silent 
as  to  when  the  land  in  question  was  taken,  or  whether  or  not 
anything  was  at  the  time  included  or  claimed  as  damages  on 
account  of  the  risk  from  fire  to  the  property  now  owned  by  the 
plaintiff.  No  question  founded  on  these  facts  was  made  in 
the  court  below,  and  of  course  is  not  to  be  entertained  in  this 
court  for  the  purposes  of  decision.  We  may,  however,  remark, 
as  to  the  general  provisions  of  the  statute,  that  if  they  are 
valid  as  to  railroads  to  be  established,  they  may  be  equally  so 
as  to  railroads  already  in  existence.  The  defendant's  charter 
not  only  contains  an  explicit  reservation  for  the  legislature  to 
alter,  amend,  or  repeal  it,  but  makes  it  also  in  terms  subject 
to  all  general  laws  the  legislature  may  thereafter  pass.  And 
as  to  any  defense  suggested  by  the  assumption  that  an  ap- 
praisal of  the  general  risk  from  fire  may  have  been  made  to 
the  plaintiff  originally,  or  his  grantor,  while  we  reserve  a  final 
decision  of  the  question  for  the  case  in  which  it  properly  arises, 
we  may  here  suggest  that  where  the  original  appraisal  only 
gave  damages  to  the  extent  that  the  property  was  diminished 
in  value  in  consequence  of  the  risk,  and  the  same  property  is 
afterwards  destroyed,  the  damages  to  be  recovered  under  the 
statute  would  of  course  only  represent  the  remaining  or  dimin- 
ished value,  so  that  the  statute  cannot  properly  be  charged 
with  allowing  double  damages  for  the  same  thing. 

In  other  jurisdictions,  the  original  appraisal  and  the  indem- 
nity provided  by  the  statute  have  not  been  considered  so  in- 
consistent as   that  both    might  not   exist  together:  Pierce  v. 


Feb.  1887.]    Grissell  v.  Housatonic  R.  R.  Co.  145 

Worcester  and  Nashua  R.  R.  Co.,  105  Mass.  199;  Bangor  etc.  R.  R. 
Co.  V.  McComb,  60  Me.  290;  Adden  v.  White  Mt.  etc.  R.  R.  Co.,  55 
N.  H.  413;  20  Am.  Rep.  220;  Lyman  v.  Boston  etc.  R.  R.  Co.,  4 
Cush.  288. 

In  further  confirmation  of  our  reasoning  as  to  the  validity 
of  the  statute,  we  make  the  following  citations:  — 

Redfield,  in  his  treatise  on  the  law  of  railways,  in  the  first 
edition,  page  360,  published  in  1857,  alluding  to  the  statutes 
similar  to  the  one  under  consideration,  said :  "  We  cannot  for- 
bear to  add  that  the  interference  of  the  legislatures  upon  this 
subject  in  many  of  the  American  states  seems  to  us  an  indica- 
tion of  the  public  sense  in  favor  of  placing  the  risk  in  such 
cases  upon  the  party  in  whose  power  it  lies  most  to  prevent 
such  injuries  occurring."  In  Pierce  on  Railroads,  p.  444,  it  is 
said:  "  Statutes  have  been  enacted  making  the  company  liable, 
even  in  the  absence  of  negligence,  for  injuries  to  private  prop- 
erty caused  by  fire  communicated  by  its  engines,  which,  in 
efifect,  make  it  an  insurer  in  case  of  such  injury.  These  stat- 
utes are  constitutional,  even  when  applied  to  pre-existing  cor- 
porations." In  2  Wood's  Railway  Law,  sec.  331',  it  is  said: 
*'  In  some  states  railway  companies  are  made  liable,  irrespec- 
tive of  the  question  of  negligence,  for  fires  set  by  their  engines, 
and  as  a  compensation  for  this  extraordinary  liability  are 
given  an  insurable  interest  in  such  property;  and  these  stat- 
utes have  been  held  constitutional,  even  in  their  application  to 
corporations  established  before  the  statute  was  passed,  and 
although  damages  for  the  risk  of  fire  were  considered  when 
the  land  was  taken."  In  the  well-considered  case  of  Rode* 
macher  v.  Milwaukee  etc.  R.  R.  Co.,  41  Iowa,  297,  20  Am.  Rep. 
592,  the  court  discussed  at  length  the  constitutionality  of  a 
provision  of  the  code  of  that  state,  that  "any  corporation 
operating  a  railway  shall  be  liable  for  all  damages  by  fire  that 
is  set  out  or  caused  by  the  operating  of  any  such  railway,"  and 
fully  sustained  the  act,  even  as  applicable  to  pre-existing  rail- 
ways. 

The  counsel  for  the  defendant  in  the  case  at  bar  sought  to 
impair  the  force  of  the  decision  by  reason  of  the  fact  that  in 
Iowa  the  code  had  entirely  supplanted  the  common  law.  The 
distinction  seems  to  us  not  well  taken.  The  legislature  surely 
could  acquire  no  additional  power  by  exercising  its  sovereign 
will  twice, — first  in  abolishing  the  common  law,  and  then  in 
enacting  the  statute.  And  the  objection  as  to  inequality  before 
the  law  BO  persistently  urged  against  our  statute  applies  with 

AM.  Bt.  Rbf.,  Vol.  L  - 10 


146  Grissell  v.  Housatonic  R.  R.  Co.  [Conn. 

equal  force  to  the  provision  of  the  Iowa  code,  for  that  applies 
exclusively  to  railway  corporations  the  same  as  our  statute. 

In  Lyman  v.  Boston  etc.  R.  R.  Co.,  4  Cush.  290,  it  was  held 
that  a  similar  statute  in  Massachusetts  was  applicable  to  rail- 
roads established  before  as  well  as  since  its  passage,  and  that 
it  extended  as  well  to  estates,  a  part  of  which  is  conveyed  by 
the  owner,  as  to  those  of  which  a  part  is  taken  by  authority  of 
law.  The  constitutionality  of  the  statute  was  not  discussed, 
but  the  principles  stated  as  constituting  its  foundation  directly 
apply.  Dewey,  J.,  in  delivering  the  opinion,  on  page  291  said: 
"  We  consider  this  one  of  those  remedial  acts  passed  for  the 
more  effectual  protection  of  property  against  the  hazards  to 
which  it  has  become  subject  by  the  introduction  of  the  loco- 
motive-engine. The  right  to  use  the  parcel  of  land  appropri- 
ated to  a  railroad  does  not  deprive  the  legislature  of  the  power 
to  enact  such  regulations,  and  impose  such  liabilities  for  in- 
juries suffered  from  the  mode  of  using  the  road,  as  the  occasion 
and  circumstances  may  reasonably  justify."  This  reasoning 
clearly  makes  the  legislation  in  question  a  legitimate  exercise 
of  the  police  power  of  the  state.  See  also  the  comments  of 
Shaw,  C.  J.,  in  delivering  the  opinion  in  Hart  v.  Western  R.  R. 
Corp.,  13  Met.  105,  46  Am.  Dec.  719;  and  of  Bigelow,  C.  J.,  in 
Ross  V.  Boston  etc.  R.  R.  Co.,  6  Allen,  90. 

2.  The  remaining  question  relates  to  the  construction  of  the 
■tatute.  Do  the  words  "other  property"  embrace  fences,  grow- 
ing trees,  and  herbage,  the  property  injured  in  this  case? 

The  entire  description  in  the  statute  is  "  building  or  other 
property,"  and  the  defendant  invokes  the  benefit  of  the  prin- 
ciple of  interpretation  known  as  noscitur  a  sociis, — that  is,  that 
the  particular  word  "  building,"  being  followed  by  the  general 
words  "  or  other  property,"  the  latter  only  includes  subjects 
ejusdem  generis. 

This  rule  has  been  often  recognized  and  applied,  but  we 
think  its  application  to  this  case  would  work  injustice  and 
tend  to  defeat  in  part  the  object  of  the  statute.  The  statute  is 
clearly  remedial,  and  ought  to  be  construed  liberally  to  effec- 
tuate the  intention  of  the  legislature,  which  was  to  give  the 
owners  of  property  along  the  route  of  the  railroad  indemnity 
for  the  loss  of  all  property  that  might  reasonably  be  said  to 
be  exposed  to  danger  from  the  source  referred  to.  And  be- 
sides, the  above  maxim  would  be  exceedingly  difficult  of 
application,  unless  the  words  "  other  property  "  should  be  en- 
tirely rejected.     The  hay,  grain,  farming  tools,  and  live-stock 


Feb.  1887.]    Grissell  v.  Housatonic  R.  R.  Co.  147 

in  a  barn,  the  goods  in  a  store,  the  personal  property  in  a  bouse 
or  factory,  would  hardly  be  ejusdem  generis  with  a  "build- 
ing ";  and  can  it  be  possible  that  the  legislature  intended  only 
a  partial  indemnity  for  the  building  alone,  overlooking  the 
greater  value  of  property  within  and  without? 

Then,  as  to  growing  trees,  the  legislature  would  have  in  view 
the  fact  that  railroads  traverse  the  forests  as  well  as  the  open 
fields,  and  that,  by  reason  of  the  annual  deposit  of  dry  leaves, 
the  former  were  peculiarly  exposed  to  danger  from  fire;  and 
again  we  ask.  Can  it  be  supposed  that  in  framing  a  general 
act  of  indemnity  the  owners  of  this  species  of  property  were 
not  to  be  included  ? 

There  is  some  disagreement  as  to  the  construction  of  this 
language  as  used  in  similar  statutes  in  other  jurisdictions,  but 
in  no  instance  has  such  property  as  was  injured  in  this  case 
been  excluded.  In  the  state  of  Maine  it  is  extended  to  all 
property  having  a  permanent  location  along  the  route,  such  as 
buildings  and  their  contents,  fences,  trees,  and  shrubbery,  but 
it  is  held  not  to  extend  to  a  pile  of  cedar  posts  temporarily 
deposited  near  the  railroad:  Chapman  v.  Atlantic  and  St.  Lavh 
rence  R.  R.  Co.,  37  Me.  92;  Pratt  v.  Atlantic  and  St.  Lawrence 
R.  R.  Co.,  42  Id.  579. 

But  it  is  said  that  a  proper  interpretation  of  the  language 
we  have  been  considering  cannot  be  reached  without  first  de- 
termining whether  the  railroad  company  could  have  procured 
insurance  on  the  property  injured.  The  argument  in  brief  is, 
that,  as  the  statute  gives  a  railroad  company  an  insurable  in- 
terest in  all  the  property  for  which  it  may  be  made  liable,  it 
cannot  be  made  liable  where  no  insurance  could  have  been 
obtained.  Hence  in  this  case  a  witness  was  offered  to  testify 
that  he  knew  of  no  insurance  company  that  would  insure 
fences,  growing  trees,  and  herbage.  This  testimony  was  re- 
jected, and  this  is  made  a  distinct  ground  of  error;  but  as  we 
stated  at  the  outset,  it  depends  upon  the  construction  of  the 
statute,  and  requires  no  separate  consideration. 

The  statute  would  be  extremely  uncertain  if  its  enforcement 
depended  on  the  ability  of  the  railroad  company  to  obtain  insur- 
ance. The  withdrawal  of  insurance  companies  from  issuing 
policies  in  a  particular  state,  owing  to  unfriendly  legislation 
or  an  alteration  of  their  charters,  might  in  effect  nullify  the 
law  as  to  railroads  in  that  state. 

Undoubtedly,  the  statute  confers  an  insurable  interest  co-ex- 
tensive with  the  property  for  which  the  railroad  company  may 


148  Qbissell  v.  Housatonic  R.  R.  Co.  [Conn. 

be  responsible,  and  gives  liberty  to  obtain  sucb  insurance  in 
its  own  name  with  any  other  party  who  is  able  and  willing  to 
contract  relative  to  the  subject-matter.  If  there  was  an  in- 
herent impossibility  of  obtaining  insurance  upon  any  particu- 
lar species  of  property,  the  argument  would  have  more  force, 
but  there  is  no  such  impossibility.  It  is  a  matter  of  common 
information  that  the  scope  and  subject-matters  of  insurance  are 
being  extended  constantly  in  all  directions,  so  that  now  there 
are  insurance  companies  that  issue  policies  of  insurance  against 
a  great  variety  of  hazards,  both  physical  and  moral.  The  rea- 
son for  conferring  this  insurable  interest  upon  the  railroad 
companies  will  further  illustrate  its  meaning  and  effect.  Be- 
fore the  statute,  the  risk  from  fire  was  upon  the  owner  of  the 
property,  and  he  alone  had  an  insurable  interest;  but  as  the 
statute  shifted  the  risk  from  the  owner  to  the  railroad  com- 
pany, it  also,  as  a  matter  of  justice  and  equity,  conferred  upon 
the  latter  the  insurable  interest,  with  the  right  to  obtain  in 
its  own  name  such  insurance.  The  corporation  now  has  the 
same  capacity  to  contract  for  insurance  that  the  owner  had 
before.  All  that  is  needed  to  make  a  valid  contract  is  a  cor- 
responding capacity  on  the  part  of  some  other  corporation  or 
individual.  The  statute,  however,  does  not  concern  itself  with 
the  last-named  party. 

In  Massachusetts,  a  statute  containing  the  same  language 
as  to  the  description  of  the  property  and  insurance  has  been 
construed  to  include  all  kinds  of  combustible  property,  real 
and  personal,  even  where  the  corporation  had  no  knowledge  or 
reasonable  cause  to  believe  that  there  was  property  situated 
where  it  was  exposed  to  injury:  Ross  v.  Boston  and  Worcester 
R.  R.  Co.,  6  Allen,  87.  In  Trash  v.  Hartford  and  New  Haven 
R.  R.  Co.,  IB  Gray,  71,  a  part  of  the  property  injured  consisted 
of  a  fence,  and  Hoar,  J.,  in  delivering  the  opinion  of  the  court, 
said:  "A  fence  is  not  so  commonly  insured,  probably  because 
its  value  and  risk  do  not  make  insurance  desirable;  but  it  cer- 
tainly can  be  insured.  Whether  a  just  construction  of  the 
statute  of  1840  would  require  any  limitation  of  the  extremely 
comprehensive  language  used  to  define  the  liability  of  railroad 
corporations  created  by  it,  this  case  gives  us  no  occasion  to 
consider.  We  certainly  do  not  intend  to  intimate,  by  putting 
our  decision  upon  the  ground  above  stated,  that  the  property 
must  be  insurable,  in  the  ordinary  or  commercial  sense  of  that 
word,  to  make  the  corporation  liable."  In  the  state  of  Maine, 
the  clause  in  their  statute  relative  to  insurance  has  been  ap- 


Feb.  1887.]    Grissell  v.  Housatonic  R.  R.  Co.  149 

plied,  in  the  construction  of  the  statute,  so  as  to  restrict  its 
operation  to  such  property,  real  or  personal,  as  has  some  per- 
manent location  along  the  route  of  the  railroad,  because,  as 
they  say,  it  would  not  otherwise  be  practicable  to  obtain  insur- 
ance; but  as  we  have  seen,  the  courts  of  that  state  find  no 
difficulty  at  all  in  extending  the  statute  to  fences  and  growing 
trees:  Chapman  v.  Railroad  Co.,  and  Pratt  v.  Railroad  Co., 
before  referred  to. 

For  the  foregoing  reasons,  we  conclude  that  there  was  no 
error  in  the  judgment  complained  of. 


Statute  Imposing  Ddtt  on  Railroad  Companies  to  Constbuct  Farm- 
CBOSSINOS,  for  the  nse  of  the  owners  of  land  adjoining  their  tracks,  is  consti- 
tntional,  even  in  respect  to  companies  chartered  before  its  passage:  Illinoia 
Cent.  R.  R.  Co.  v.  Willenborg,  57  Am.  Rep.  862;  Portland  etc.  R.  R.  Co.  v. 
Inliabitanta  etc.,  57  Id.  784;  and  see  Pennsylvania  R.  R.  Co.  v.  liiblet,  5  Id. 
360. 

Statute  Requiring  Railroad  Engineers  to  be  Examined  and  Licensed 
BY  Board  Appointed  by  the  governor,  and  making  it  a  misdemeanor  for 
•ny  one  to  operate  an  engine  without  being  thus  licensed,  is  constitutional: 
McDonald  v.  State,  60  Am.  Rep.  158. 

CoNSTRUcrrioN  of  Statute  Making  Railroad  Companies  Liable  for  In- 
juries Caused  by  Fire  from  their  Locomotives,  and  giving  them  an  in- 
■arable  interest  in  property  exposed  along  their  lines:  See  Rowell  v.  Railroad 
Company,  24  Am.  Rep.  59;  Simmonds  v.  Railroad  Company,  52  Id.  587;  Per- 
ley  V.  Railroad  Company,  96  Am.  Dec.  645. 

Statitte  Providing  that  All  Railroad  Companies  should  be  Liabls 
lOR  Damages  from  Fires  Caused  by  Operating  their  Roads  is  Valid 
AND  Constitutional  as  to  railroads  incorporated  before  the  statute  was 
I:  Rodemacher  v.  Railroad  Company,  20  Am.  Rep.  692. 


CASES 


IN  THB 


COURT  OF  ERRORS  MD  APPEALS 


or 


DELAWARE. 


Deringer's    Administrator    v.    Deringer's    Ad- 
ministrator. 

[5  Houston,  416.] 

FoBEiGN  Administrator  Acts  in  this  state  byviriaeof  the  power  originally 
granted  to  him;  and  the  laws  of  this  state  recognize  him  as  snch  upon 
the  mere  production  of  his  duly  authenticated  commission,  and  there- 
upon concede  him  the  powers  of  administrator  appointed  by  the  courts 
here. 

Payment  to  Foreign  Administrator  is  good,  although  such  administrator 
has  neither  given  security  nor  recorded  his  letters  of  administration. 

Corporation  cannot  Take  out  Letters  op  Administration  under  th« 
laws  of  this  state. 

Corporation,  when  Acting  within  Scope  of  its  Authoritt,  has  all  the 
powers  of  ordinary  persons,  and  when  so  acting,  its  contracts,  whether 
sealed  or  unsealed,  written  or  unwritten,  are  valid. 

Corporation  may  Act  as  Administrator  when  the  law  of  the  state  does 
not  require  the  administrator  to  take  an  oath,  or  to  do  any  other  act  which 
a  corporation  is  incompetent  to  perform. 

Corporation  may  be  Trustee  Both  of  Real  and  Personal  Property, 
and  its  authority  as  such  is  the  same  as  that  of  an  individual  so  acting. 

Corporation,  unless  Prohibited  by  its  Charter  or  by  statute,  has 
power  to  make  all  contracts  requisite  for  the  purposes  for  which  it  was 
created. 

Foreign  Corporation  has  Full  Power  to  Execute  Bond,  and  when 
this  is  done,  it  has  complied  with  the  law  of  this  state  as  to  the  qualifi- 
cation of  a  foreign  administrator. 

Foreign  Corporation  having  Acted  as  Administrator  in  the  state 
where  it  was  created  may  act  as  such  in  this  state,  and  may  bring  suit 
here. 

Comity  of  One  State  will  Enforce  Laws  of  Another  State,  when 
Buch  enforcement  neither  violates  its  own  laws  nor  infringes  the  rights  of 

160 


June,  1878.]    Debinqer's  Adm'b  v.  DERiNaEB's  Aom'b.       151 

ita  own  citizens;  and  on  like  terms  it  will  permit  a  corporation  of  another 
state  to  transact  business  within  the  state  into  which  it  comes. 

Right  or  Foreign  Corforatiom  to  do  Business  within  this  state  cannot 
be  called  in  question  except  by  the  state  itself. 

Law  or  Situs  Prevails  over  Law  of  Domicile  as  to  the  order  of  pay- 
ment of  debts  of  deceased,  when  decedent's  estate  is  insolvent. 

Assumpsit  by  the  plaintiff,  a  foreign  corporation,  suing  as 
administrator  of  Theophilis  T.  Deringer,  deceased.  The 
questions  raised,  and  the  facts  on  which  they  are  based,  ap- 
pear from  the  opinion. 

By  Court,  Wales,  J.  This  is  an  action  of  auumpsit  on  cer- 
tain promissory  notes  and  due  bills  which  were  made  by  the 
intestate  of  the  defendant  to  the  intestate  of  the  plaintiff. 
The  pleas  are  non  assumpsit,  the  act  of  limitations,  plene  ad- 
viinistravit,  except  the  sum  of  $222.84,  and  a  special  plea  to 
the  effect  and  in  substance  that  the  plaintiff  is  a  foreign  cor- 
poration existing  under  the  laws  of  another  state,  with  power 
to  administer  the  estates  of  deceased  persons;  "that  such 
power  is  repugnant  to  the  policy  and  prejudicial  to  the  inter- 
ests of  this  state  and  of  its  citizens;  and  that  the  action  against 
this  defendant  being  in  that  character  cannot  be  maintained," 
etc.  The  replication  to  this  plea  sets  forth  that  the  plaintiff 
is  a  corporation  created  by  and  organized  under  the  laws  of 
Pennsylvania,  and  by  said  laws  "  is  authorized  to  accept  and 
execute  the  office  and  appointment  of  executor  or  adminis- 
trator or  other  trustee,  and  to  accept  and  execute  all  such 
trusts  of  every  description  not  inconsistent  with  the  laws  of 
the  state  of  Pennsylvania,  as  may  be  committed  to  it  by  any 
person  or  persons  whatever,  or  by  any  corporation  or  register 
of  wills,  or  by  any  court  of  record,  whether  of  the  said  state  of 
Pennsylvania  or  any  other  state  or  of  the  United  States;  that 
the  plaintiff  hath  been  duly  appointed  and  qualified  as  admin- 
istrator &6  aforesaid  of  Theophilis  T.  Deringer  by  the  register 
of  wills  of  the  city  and  county  of  Philadelphia,  in  the  state  of 
Pennsylvania,  and  by  virtue  of  said  power,  office,  and  appoint- 
ment is  entitled  to  maintain  this  action,"  etc.  To  this  replica- 
tion there  was  a  general  demurrer,  on  which  the  court  below 
gave  judgment  for  the  defendant.  The  plaintiff  assigns  this 
judgment  as  error. 

It  is  an  elementary  rule  that  a  general  demurrer  reaches 
back  through  the  whole  record  and  attaches  upon  the  first  sub- 
stantial defect  in  the  pleadings.  Under  the  operation  of  this 
rule,  the  question  of  the  right  of  the  plaintiff  in  its  capacity 


152        Derinqer's  Adm'r  v.  Derinqer's  Aom'r.    [Delaware, 

as  an  administrator  to  maintain  an  action  in  the  courts 
of  Delaware  is  brought  before  us  for  consideration.  For  al- 
though the  special  plea  may  be  defective,  as  contended  by  the 
plaintiff's  counsel,  yet  if  it  appears  from  a  full  inspection  that 
the  declaration  is  substantially  wrong  in  its  inception,  in  that 
the  plaintiff  has  no  standing  in  court,  judgment  cannot  be 
given  for  the  plaintiff,  because  a  bad  plea  is  suflBcient  for  a 
bad  declaration  (Gould's  PI.  475),  and  cannot  give  a  right  of 
action  where  none  exists.  If,  therefore,  at  any  stage  in  the 
progress  of  a  cause  a  material  error  should  be  discovered,  as  a 
want  of  jurisdiction  of  the  cause  of  action  or  of  the  person  of 
either  of  the  parties,  it  would  be  the  duty  of  the  court  to  take 
notice  of  the  error,  and  render  judgment  accordingly.  Or  if 
at  any  time  it  appears  that  to  sustain  an  action  would  be  con- 
trary to  good  morals  or  public  policy,  the  court  will  not  hesi- 
tate to  dismiss  it.  The  record  in  this  cause  upon  an  entire 
view  of  it,  as  well  as  the  argument  of  counsel,  presents  the 
question  whether  the  plaintiff  can  act  as  an  administrator  in 
Delaware. 

It  is  not  denied  that  the  plaintiff  in  the  state  of  its  creation 
is  clothed  with  the  power  to  accept  the  office  of  an  executor  or 
administrator,  and  to  perform  all  the  duties  incident  to  either 
trust;  but  the  objection  is  made  that  the  laws  of  Delaware 
regulating  the  granting  of  letters  testamentary  or  of  adminis- 
tration, while  not  expressly  disqualifying  or  excluding  a  cor- 
poration, nowhere  recognize  that  a  corporation  can  be  an 
administrator,  and  as  the  power  to  act  in  that  representative 
character  cannot  be  granted  under  the  general  statute  to  a 
domestic  corporation,  therefore  a  foreign  corporation  claiming 
to  act  under  letters  issued  in  another  jurisdiction  cannot  be 
permitted  to  execute  its  power  here  or  to  bring  an  action  in 
our  courts.  And  it  is  further  objected  that  in  the  absence  of 
positive  law  a  corporation  is  disqualified  and  incompetent  at 
common  law  from  being  an  executor  or  administrator. 

To  fully  understand  the  extent  and  force  of  the  first  objec- 
tion, it  will  be  necessary  to  examine  the  statute.  The  law 
provides  that  the  register  of  the  county  in  which  the  deceased 
last  resided,  or  of  the  county  in  which  he  had  any  real  or  per- 
sonal estate,  shall  grant  letters  of  administration  to  some  one 
or  more  of  the  persons  entitled  to  the  residue  of  the  personal 
estate;  if  none  of  those  who  are  capable  will  accept,  then  to 
one  or  more  of  the  creditors,  and  lastly,  to  any  suitable  per- 
son.    The  first  duty  of  the  administrator  is  to  take  and  sub- 


June,  1878.]    Deringer's  Adm'r  v.  Deringer's  Adm'r.       153 

scribe  an  oath  for  the  faithful  performance  of  his  duties,  and 
then  to  give  a  bond  to  the  state,  with  surety  to  be  approved  by 
the  register,  with  the  usual  condition  as  to  the  inventory  and 
appraisement  of  the  goods  and  chattels,  collecting  debts  due 
and  paying  claims  against  the  estate,  distributing  the  residue 
of  the  personalty  according  to  law,  and  rendering  a  just  and 
true  account  within  a  certain  time.  He  is  also  required  to 
make  an  affidavit  verifying  the  inventory  and  list  of  debts  in 
making  his  return  to  the  register:  Amended  Code,  c.  89,  sees. 
8  et  seq.  These  provisions  apply  to  the  granting  of  original 
or  domiciliary  letters  to  the  principal  administrator  of  the  de- 
ceased, who  at  the  time  of  his  death  resided  in  the  state  or 
was  possessed  of  property  real  or  personal  within  its  jurisdic- 
tion. But  where  the  domicile  of  the  deceased  was  in  another 
state,  and  letters  have  been  granted  to  an  administrator  in 
that  jurisdiction,  the  law  of  this  state  has  provided  a  very 
simple  substitute  for  ancillary  or  subsidiary  administration,  so 
that  the  foreign  administrator  in  most  cases  may  proceed  with- 
out any  delay  to  take  possession  of  the  effects  of  the  deceased 
and  to  collect  the  debts  due  to  the  estate.  The  law,  in  fact, 
recognizes  the  foreign  administrator  upon  the  mere  production 
of  his  commission  duly  authenticated  under  the  seal  of  the 
office  or  court  by  whom  it  was  issued,  and  at  once  invests  him 
with  authority  to  represent  the  deceased  in  the  same  manner 
as  if  he  had  been  originally  appointed  by  a  register  in  this 
state;  and  it  is  only  upon  the  happening  of  certain  contingen- 
cies that  he  will  be  compelled  to  take  any  proceedings  of  a 
public  or  judicial  nature  in  order  to  confirm  his  authority. 

These  contingencies  are  pointed  out  in  the  same  chapter, 
sections  46-48.  "  If  the  deceased  be  indebted  to  an  inhabi- 
tant of  this  state  in  a  sum  not  less  than  twenty  dollars,  the 
executor  or  administrator,  before  he  shall  recover  judgment  in 
court,  shall  cause  such  letters  to  be  recorded  in  the  register's 
office  in  one  of  the  counties,  and  shall  also,  with  sufficient 
surety  or  sureties,  to  be  approved  by  the  register,  become 
bound  to  the  state  in  a  penalty  double  the  best  estimate  of  the 
personal  estate  of  the  deceased  in  this  state,  with  condition  to 
be  void  if  be  shall  truly  account  for  all  the  personal  estate  of 
the  deceased  in  this  state  which  shall  come  to  his  knowledge, 
and  faithfully  administer  and  distribute  the  same  according 
to  law."  The  court  may  stay  proceedings  in  any  action  by 
such  administrator,  and  any  person  in  the  state  having  any 
personal  property  of  the  deceased  may  refuse  to  pay  or  deliver 


154        Debugger's  Adm'r  v.  Derinqer's  Adm'r.    [Delaware, 

the  same  until  the  letters  have  been  recorded  and  the  security 
given,  but  a  payment  or  delivery  without  such  recording  or 
security  shall  be  good.  A  judgment  shall  not  be  reversed  nor 
set  aside  as  irregular  on  the  ground  that  the  recording  and 
security  have  been  omitted,  unless  the  special  objection  shall 
have  been  made  and  overruled,  but  the  court  may  stay  the 
proceedings  in  the  judgment  until  those  requirements  have 
been  complied  with.  It  will  be  observed  that  the  foreign  ad- 
ministrator may  act  by  virtue  of  the  original  power  granted 
to  him,  and  without  any  additional  warrant  from  a  register  in 
Delaware,  and  that  it  is  only  upon  the  refusal  of  a  debtor  or 
bailee  to  pay  or  deliver  money  or  goods  or  chattels,  or  upon 
direct  application  to  the  court,  that  he  is  required  to  record  his 
letters  and  give  security.  He  is  not  obliged  to  take  the  oath 
of  office,  to  make  the  affidavit  verifying  the  inventory  and 
appraisement,  or  even  to  return  an  account  of  his  receipts 
and  disbursements  to  the  officer  who  approved  his  security. 
The  statute  leaves  him  to  settle  his  accounts  with  the  office  or 
court  which  first  appointed  him,  and,  after  the  letters  hav* 
been  recorded  and  the  security  given,  exercises  no  further  con- 
trol over  him. 

The  question  then  to  be  determined  in  this  branch  of  the 
case  is,  Does  the  statute  prescribe  any  condition  or  duty  which 
the  plaintiff,  being  a  corporation,  cannot  perform,  and  hence 
is  unable  to  maintain  its  action? 

There  would  be  a  difficulty,  perhaps  an  insuperable  one,  in 
a  corporation  not  being  specially  authorized  by  the  laws  of 
this  state  performing  the  conditions  necessary  to  qualify  it  to 
take  out  original  letters  as  administrator  in  its  corporate  name, 
namely,  taking  the  oath  and  making  the  requisite  affidavits; 
but  in  the  present  case  no  oath  or  affidavit  is  required,  and 
the  inquiry  is  brought  down  to  the  narrow  point  whether  a 
corporation,  constituted  as  the  plaintiff  is,  with  power  to  ac- 
cept the  office  of  administrator,  can  execute  a  valid  bond, 
such  as  is  prescribed  by  the  statute.  The  negative  of  this 
proposition  was  insisted  upon  by  the  defendant's  counsel,  but 
both  the  principle  and  the  authority  of  adjudged  cases  lead 
to  an  affirmative  conclusion. 

The  law  in  relation  to  the  power,  duties,  and  responsibilities 
of  corporations,  public  and  private,  has  been  much  and  fre- 
quently discussed  of  late  years,  both  in  the  courts  and  by 
text-writers.  Many  doctrines  which  were  once  held  to  be 
Bound,  proving  unsuited  to  the  demands  and  usages  of  busi- 


June,  1878.]    Deringer's  Adm'r  v.  Deringer's  Adm'b.       155 

ness,  have  been  overturned,  while  others,  once  considered  as 
of  doubtful  or  uncertain  authority,  have  long  since  been  ac- 
cepted and  settled  as  the  law  of  the  land. 

It  was  laid  down  by  Blackstone,  and  the  notion  prevailed 
for  some  time,  that  a  corporation  could  not  make  a  parol  con- 
tract, and  could  speak  and  act  only  by  its  common  seal:  1 
Bla.  Com.  474;  but  this  technical  rule  of  the  common  law  soon 
gave  way  and  vanished,  and  to-day  a  seal  is  no  more  neces- 
sary to  render  valid  the  acts  and  contracts  of  a  corporation 
than  of  an  individual,  and  in  all  cases  where  a  natural  per- 
son would  be  bound  without  a  seal,  a  corporation  would  also 
be  bound:  2  Kent's  Com.  288.  It  was  once  questioned  whether 
a  corporation  could  maintain  a  suit  beyond  the  jurisdiction  in 
which  it  was  incorporated,  but  Chancellor  Kent,  in  1820,  in 
answer  to  such  an  objection,  declared  it  to  be  well  settled  that 
foreign  corporations  could  sue  in  their  corporate  name,  and 
could  prove  as  a  matter  of  fact,  if  it  was  denied,  that  they 
were  lawfully  incorporated:  Silver  Lake  Bank  v.  North,  4 
Johns.  Ch.  372.  So,  too,  in  regard  to  its  liability  to  action, 
it  has  been  held  that  it  may  be  made  a  defendant  in  actions 
of  assumpsit,  trover,  trespass,  and  for  the  publication  of  a  libel, 
and  even  be  indicted  for  malfeasance  or  non-feasance.  As  to 
its  power  of  making  contracts  and  the  kind  of  obligations  a 
corporation  may  enter  into,  thare  would  seem  to  be  little  room 
for  serious  doubt  in  the  light  of  the  later  authorities.  A  cor- 
poration, being  created  for  a  specific  purpose,  can  make  no 
contract  forbidden  by  its  charter,  or  in  general  any  contract 
vhich  is  not  necessary,  either  directly  or  incidentally,  for  tho 
objects  of  its  creation:  Angell  and  Ames  on  Corporations,  sec. 
266.  The  exercise  of  the  corporate  franchise,  which  is  the 
legislative  grant  of  special  privileges,  cannot  be  extended 
beyond  the  letter  and  spirit  of  the  act  of  incorporation;  but 
the  result  of  all  the  authorities  is,  that  a  corporation  may  by 
Tirtue  of  its  implied  powers,  unless  expressly  or  by  necessary 
Implication  prohibited,  make  any  contract,  either  as  principal 
or  surety,  proper  as  the  usual  and  ordinary  means  of  carrying 
on  its  business  under  the  circumstances  under  which  it  may 
be  placed:  Id.,  sec.  258.  In  fine,  a  corporation  has  the  power 
to  do  all  things  necessary  to  carry  out  the  purposes  for  which 
it  was  incorporated,  which  are  not  in  violation  of  positive  law. 
When  acting  within  the  scope  of  the  legislative  purposes  of 
its  institution,  all  its  contracts,  whether  sealed  or  unsealed, 
written  or  unwritten,  are  valid,  and  it  has  all  the  powers  of 


156        Deringer's  Adm*r  v.  Deringer's  Adm'r.    [Delaware, 

ordinary  persons  within  that  limit:  Brady  v.  Mayor  of  Brook- 
lyn, 1  Barb.  584.  "  It  is  a  well-known  principle,"  says  Judge 
Thompson,  in  Philadelphia  and  Sunbury  R.  R.  Co.  v.  Lewes,  33 
Pa.  St.  37,  75  Am.  Dec.  574,  "that  a  corporation,  like  a 
natural  person,  has  a  right  to  carry  on  its  legitimate  business 
by  all  legal  and  necessary  means  not  prohibited  by  law." 
Every  corporation  has  power  to  make  all  contracts  that  are 
necessary  and  usual  in  the  course  of  the  business  it  transacts, 
as  means  to  enable  it  to  effect  such  object,  unless  expressly 
prohibited  by  law,  or  the  provisions  of  its  charter:  Barry  v. 
Merchants'  Exchange  Co.,  1  Sand.  Ch.  80.  The  authorities  are 
numerous  on  this  point.  In  all  the  cases  the  diflBculty,  if 
any,  was  not  in  ascertaining  the  principle,  but  in  applying  it 
to  a  special  state  of  facts.  The  question  here  is.  Would  the 
execution  of  the  administration  bond  be  within  the  implied 
powers  of  the  plaintiff's  charter?  Its  power  to  take  the  office 
and  perform  the  functions  of  an  administrator  in  the  state  of 
its  corporate  residence  is  clear  and  undisputed,  and  ex  comitate 
it  should  be  allowed  to  exercise  the  same  office  here,  unless  to 
permit  it  to  do  so  would  be  in  violation  of  some  positive  local 
law.  No  such  law  has  been  referred  to,  and  it  is  believed  that 
none  such  exists.  Neither  its  charter  nor  any  statute,  expressly 
or  by  implication,  prohibits  it  from  making  the  bond,  and  the 
rule  of  law  in  such  a  case  is,  that  when  both  the  charter  and 
statute  are  silent,  it  has  power  to  make  all  such  contracts  as 
are  necessary  and  usual  in  the  course  of  business  as  means  to 
enable  it  to  attain  the  object  for  which  it  was  created:  Angell 
and  Ames  on  Corporations,  sec.  271.  In  Dartmouth  College  v. 
Woodward,  4  Wheat.  636,  the  court  says:  "A  corporation  is 
an  artificial  being,  invisible,  intangible,  and  existing  only  in 
contemplation  of  law.  Being  a  mere  creature  of  the  law,  it 
possesses  only  those  properties  which  the  charter  of  its  crea- 
tion confers  upon  it,  either  expressly  or  as  incidental  to  its 
very  existence." 

Secondly,  it  is  objected  that  by  the  common  law  the  plain- 
tiff is  not  capable  of  being  an  administrator.  Blackstone, 
among  the  disabilities  of  a  corporation,  includes  its  inability 
to  be  an  executor  or  administrator,  "  for  it  cannot  take  an 
oath  for  the  due  execution  of  the  office":  1  Bla.  Com.  477. 
In  Bac.  Abr.,  tit.  Executors  and  Administrators,  2,  the  same 
doctrine  is  laid  down  on  the  same  ground,  but  under  a  scmble, 
and  with  these  additional  reasons:  1.  Because  corporations 
cannot  be  feoffees  in  trust  for  the  use  of  others;  and  2.  Be- 


June,  1878.]    Debinger's  Adm'r  t?.  Deringer's  Adm'b.       157 

cause  they  are  a  body  framed  for  a  special  purpose.  When 
the  reason  of  a  rule  ceases,  so  does  the  rule  itself.  The  plain- 
tiff is  not  required  to  take  an  oath.  It  has  been  incorporated 
or  "  framed  for  the  special  purpose  "  of  acting  in  the  charac- 
ter and  capacity  in  which  it  has  come  into  court;  and  it  is 
now  well  and  long  established  that  a  corporation  may  be 
a  trustee  in  the  same  manner  as  an  individual,  not  only  of 
real  estate,  but  of  personal  property,  to  the  same  extent  as 
private  persons:  Hill  on  Trustees,  48,  and  cases  cited  in  the 
note.  Says  Toller:  "  It  now  seems  settled  that  corporations 
can  be  executors,  and  that  on  their  being  so  named  they  may 
appoint  persons  styled  syndics,  to  receive  administration  with 
the  will  annexed,  who  are  sworn  like  all  other  administrators. 
Such  corporations,  as  can  take  the  oath  of  an  executor  are 
clearly  competent," — as,  for  instance,  a  corporation  sole:  Toller 
on  Executors,  30.  There  is,  then,  no  inherent  disability  or 
disqualification  belonging  to  a  corporation  as  such  which  ex- 
cludes it  from  acting  as  an  administrator,  and  it  may  accept 
the  oflBce  if  not  prohibited  by  its  charter,  or  forbidden  by  stat- 
ute, whenever,  from  the  objects  of  its  incorporation  and  the 
nature  of  its  business,  it  may  become  necessary  and  proper, 
tnd  it  is  able  to  comply  with  the  conditions  prescribed  by  law 
as  to  giving  bond,  etc.  Practically,  the  position  of  the  plain- 
tiff is  meritorious  and  unobjectionable.  With  the  express 
power  contained  in  its  charter  to  receive  the  appointment  of 
administrator,  and  with  its  capital  stock  pledged  as  the  se- 
curity required  for  the  faithful  performance  of  its  duties,  it 
brings  an  action  in  its  representative  capacity  for  the  recovery 
of  a  debt  due  to  its  intestate,  and  is  met  at  the  outset  by  tech- 
nical rules  which,  whatever  may  have  been  the  reason  of  their 
origin  and  adoption,  have  either  become  obsolete  or  have  been 
BO  modified  and  relaxed  as  to  be  no  longer  of  general  applica- 
tion. The  execution  of  the  bond  would,  at  the  best,  amount 
to  little  more  than  a  form,  and  be  without  substantial  benefit 
or  necessity;  but  still  the  defendant  is  entitled  to  it,  if  it  is 
insisted  upon,  and  the  plaintiff  has  a  full  and  lawful  power  to 
execute  it,  as  it  would  have  to  make  or  indorse  a  promissory 
note,  or  accept  a  bill  of  exchange,  or  to  execute  any  other 
description  of  bond  which  may  be  fairly  and  legitimately 
considered  as  necessary  and  proper  in  the  usual  course  of  its 
business.  It  has  not  been  made  to  appear  in  what  manner 
the  interests  of  this  state  or  of  its  citizens  would  be  impaired, 
or  in  what  way  its  policy  would  be  invaded  or  subverted,  by 


156        Deringer's  Adm'r  v.  Deringer's  Adm'r.     [Delaware, 

eustaining  the  plaintiff's  action.  Admitting  that  a  corpora- 
tion may  be  unable  to  act  as  an  original  administrator  under 
the  provisions  of  the  general  statute,  it  does  not  follow  that  it 
may  not  be  recognized  as  a  foreign  administrator  on  the  pro- 
duction of  letters  duly  authenticated  and  giving  bond.  The 
word  "  persons  "  may  extend  to  and  include  bodies  corporate 
and  politic  as  well  as  individuals:  Amended  Code,  c.  6.  If 
the  plaintiff  can  give  the  bond,  it  does  all  that  the  law  requires. 
The  rights  of  our  citizens  will  not  be  endangered,  their  prop- 
erty rendered  less  secure,  or  the  dignity  of  the  state  be  dimin- 
ished. If  the  policy  of  the  state  is  to  be  inferred  from  the 
history  of  its  legislation,  the  act  of  the  general  assembly  of 
Delaware  of  April  9,  1873,  incorporating  a  company  for  the 
special  purpose,  among  others,  of  acting;^  as  administrator, 
would  be  conclusive  of  that  question:  14  Del.  Laws,  714.  In 
Bank  of  Augusta  v.  Earle,  13  Pet.  585,  cited  by  counsel  on 
both  sides.  Chief  Justice  Taney,  in  the  course  of  a  learned 
and  elaborate  opinion,  says:  "  When  a  court  is  called  on  to 
declare  contracts  ....  to  be  void  on  the  ground  that  they 
conflict  with  the  policy  of  the  state,  the  line  of  that  policy 
should  be  very  clear  and  distinct  to  justify  the  court  in  sus- 
taining the  defense.  Nothing  can  be  more  vague  and  indefi- 
nite than  that  now  insisted  on  as  the  policy  of  Alabama.  It 
rests  altogether  on  speculative  reasoning  as  to  her  supposed 
interests,  and  is  not  supported  by  positive  legislation."  The 
point  made  in  connection  with  this,  that  a  corporation  can 
have  no  legal  existence  outside  of  the  sovereignty  by  which  it 
is  created,  is  not  supported  by  argument  or  authority.  The 
general  principle  is,  that  a  corporation  created  in  one  state 
can  make  no  valid  contract  in  another  without  the  latter's 
sanction,  express  or  implied;  but  it  has  been  repeatedly  de- 
cided that  not  only  can  a  corporation  make  a  contract  in 
other  states,  but  may  be  sued  by  service  on  its  agencies  in 
other  jurisdictions.  It  has  already  been  shown  that  it  cau 
sue  in  another  state; 

The  great  rule  in  the  settlement  of  estates  is,  that  the  per- 
sonal property  is  distributed  by  the  law  of  the  domicile,  and 
that  prevails  where  it  does  not  conflict  with  the  lex  rei  sitas. 
To  ascertain  the  existence  of  such  conflict  is  not  difficult. 
When  a  statute  or  the  unwritten  or  common  law  of  the  state 
forbids  the  recognition  of  the  foreign  law,  the  latter  is  of  no 
force  whatever.  When  both  are  silent,  then  the  question 
arises,  Which  of  the  conflicting  laws  is  to  have  effect  ?     Gen- 


June,  1878.]    Deringer's  Adm'r  v.  Deringer's  Adm'r.       159 

erally,  force  and  effect  will  be  given  by  any  state  to  foreign 
laws  in  cases  where  from  the  transactions  of  the  parties  they 
are  applicable,  unless  they  affect  injuriously  her  own  citizens, 
violate  her  express  enactments,  or  are  contra  bonos  mores.  And 
courts  of  justice  in  one  state  will,  out  of  comity,  enforce  the 
laws  of  another  state,  when  by  such  enforcement  they  will  not 
violate  their  own  laws  or  inflict  an  injury  on  some  one  of  their 
own  citizens:  Bouv.  Law  Diet.,  tit.  Comity.  Chief  Justice  Waite, 
in  Pensacola  Telegraph  Co.  v.  Western  Union  Telegraph  Co.,  96 
U.  S.  1,  17  Alb.  L.  J.  306,  states  the  law  on  this  subject  briefly 
and  clearly:  "  Upon  principles  of  comity,  the  corporations  of 
one  state  are  permitted  to  do  business  in  another,  unless  it  con- 
flicts with  the  law  or  unjustly  interferes  with  the  rights  of  the 
citizens  of  the  state  into  which  they  come.  Under  such  cir- 
cumstances, no  citizen  of  a  state  can  enjoin  a  foreign  corpora- 
tion from  pursuing  its  business.  Until  the  state  acts  in  its 
sovereign  capacity,  individual  citizens  cannot  complain.  The 
state  must  determine  for  itself  when  the  public  good  requires 
that  its  implied  assent  to  the  admission  shall  be  withdrawn  ": 
Story's  Conflict  of  Laws,  36,  37. 

The  law  of  ancillary  administration  is  founded  on  the  duty 
of  every  government  to  protect  its  own  citizens  in  the  enjoy- 
ment of  their  own  property  and  the  recovery  of  their  debts,  at 
the  same  time  having  due  respect  to  the  rights  of  foreign  credi- 
tors. When  the  estate  of  a  deceased  person  is  solvent,  there 
is  no  difiiculty  in  appl3nng  its  assets,  and  it  is  only  in  cases  of 
insolvency  that  any  question  can  arise  as  to  the  order  of  pay- 
ment of  debts,  and  in  such  cases  the  law  of  the  situs  prevails 
over  the  law  of  the  domicile.  But  that  question  has  not  been 
made  here,  there  being  no  intimation  that  the  estate  which 
the  plaintiff  represents  is  not  fully  able  to  meet  all  lawful 
claims  against  it.  The  sole  inquiry  is  as  to  the  incidental  or 
implied  power  of  the  plaintiff  to  comply  with  the  requirements 
of  the  statute  by  giving  the  bond.  This  power  it  has,  and,  as 
there  is  no  positive  law,  or  definite  and  known  state  policy  to 
prohibit  or  forbid  its  exercise  of  the  duties  of  an  administra- 
tor, there  is  no  reason  why  it  should  not  be  allowed  to  main- 
tain this  action. 

Saulsbury,  C,  concurred. 

WooTTEN,  J.,  dissented. 

Who  mat  bb  ExzcuroBa  or  ADXUfisTRATORa:  Berry  v.  Hamilton,  M 
Ajo.  Deo.  615,  and  note. 


f 


160        Debingeb's  Adm'b  v.  Debingeb's  Adm'b.    [Delaware, 

FoREioiT  Executor  Who  Comes  into  Connecticut  to  Reside,  bring- 
ing with  him  a  portion  of  his  testator's  estate,  cannot  be  made  liable  there 
at  the  suit  of  a  creditor  of  the  testator,  even  to  the  extent  of  property  so 
removed:  Hedenburg  v.  Hedenburg,  33  Am.  Rep.  10. 

Assignee  or  Foreign  Executor.  —  An  action  may  be  brought  in  Iowa 
by  assignee  of  foreign  executor,  although  there  has  been  no  probate  or  ad- 
ministration  in  Iowa:  Campbell  v.  Brovm,  52  Am.  Rep.  446.  Foreign  admin- 
istrator cannot  maintain  an  action  in  Kansas  for  the  negligent  killing  of  his 
intestate,  where  he  cannot  maintain  such  an  action  under  the  law  of  the  state 
of  his  appointment:  LimekiUer  v.  Hannibal  and  St.  Joseph  R.  R.  Co.,  52  Id. 
623.  Foreign  administrator  cannot  sell  to  strangers  a  mortgage  on  real 
property  in  Michigan  owned  by  the  deceased,  who  died  in  another  state, 
when  the  estate  of  said  deceased  is  in  course  of  regular  and  valid  adminis* 
tration  in  Michigan. 

Action  by  Foreign  Executor.  —  An  executor  appointed  in  Texas  may 
maintain  an  action  in  California,  in  his  own  name,  upon  a  judgment  recov' 
ered  by  him  as  such  executor  in  Texas:  Lewis  v.  Adams,  59  Am.  Rep.  423. 
Administratrix  of  an  estate  appointed  in  Colorado,  where  intestate  died 
while  temporarily  sojourning  there,  cannot  bring  an  action  in  Kansas  on 
notes  given  by  parties  domiciled  in  Kansas  secured  by  mortgsige  on  land 
situated  there:  Moore  v.  Jordan,  59  Id.  550. 

Executor  of  Foreign  Will,  Action  against.  — Legatee  under  a  for- 
eign will  may  maintain  an  action  to  recover  legacy  against  executor  who  has 
qualified  in  place  of  domicile  of  testator  and  in  this  state,  there  being  sufiQ- 
cient  assets  in  this  state  to  pay  legacy:  Graveley  v.  Graveley,  60  Am.  Rep. 
478;  Cincinnaii  Mutual  Health  Assurance  Co.  v.  Rosenthal,  8  Id.  626. 

Executor  or  Administrator  has  No  Authority  to  Go  into  Foreign 
Territory  and  exercise  his  official  functions  over  property  there:  Molyneux 
V.  Seymour,  Fanning,  dc  Co.,  76  Am.  Dec.  668,  note. 

Comity.  —  Foreign  corporation  invokes  the  comity  of  the  state  for  the 
transaction  of  its  business,  and  must  submit  to  the  laws  of  such  state  rela- 
tive to  foreign  corporations:  Hampson  v.  Weare,  66  Am.  Dec.  121,  note. 

Corporation  may  Act  in  Foreign  State,  and  upon  being  recognized  there 
may  by  its  agents  make  any  contracts  within  its  limited  powers  which  are 
not  prohibited  by  the  foreign  state:  O/tio  Life  Insurance  Co.  v.  Merchants'  /n- 
ncrance  and  Trust  Co.,  53  Am.  Dec.  742. 

Right  of  Corporation  of  One  State  to  Exercise  its  Corporate  Pow- 
ers WITHIN  Another  State  is  dependent  upon  the  will  of  the  state  in 
which  the  exercise  of  such  right  is  attempted:  Commonwealth  v.  Milton,  54 
Am.  Dec.  522. 

Corporation  Keeping  within  Scope  of  their  General  Powers,  and 
having  authority  by  the  laws  of  their  creation  to  make  certain  contracts,  may 
do  so  in  foreign  governments,  if  such  contracts  are  not  prohibited  by  the 
laws  of  such  governments:  Blair  v.  Perpetual  Insurance  Co.,  47  Am.  Dec.  129. 

Corporation  of  Sister  State  may  Maintain  Suits  in  Courts  of  This 
State;  in  this  respect  there  is  no  difference  between  natural  and  artificial 
persons:  Lathrop  v.  Commercial  Bank,  33  Am.  Dec.  481. 

Foreign  Corporation  —  Trustee. — New  York  corporation,  authorized 
by  its  charter  to  hold  real  estate  and  to  act  as  trustee,  appointed  by  a  New 
York  court  trustee,  under  the  will  of  a  citizen  of  that  state,  has  no  power  to 
hold  real  estate  of  the  testator  in  Illinois:  United  States  Trust  Co.  v.  Lee,  24 
Am.  Rep.  236. 


June,  1879.]     Cooch's  Ex'r  v.  Cooch's  Adm'r.  16t 

Foreign  Corporahok,  Powers  of.  — Every  power  which  a  corporation 
exercises  in  a  state  other  than  the  one  where  created  depends  for  its  validity 
upon  the  laws  of  that  state:  Phoenix  Insurance  Co.  v.  Commonioealth,  96  Am. 
Dec.  331,  and  note.  In  Massachusetts,  foreign  corporation  may  make  con* 
tracts  within  scope  of  its  charter,  and  may  sue  and  be  sued  thereon:  Folgtr 
V.  Columbian  Insurance  Co.,  96  Id.  747.  Circumstances  under  which  foreign 
corporation  may  make  valid  contracts  and  may  sue  and  be  sued:  Id., 
note  754.  Foreign  corporation  is  recognized  in  foreign  jurisdiction,  not  as 
act  of  right,  but  as  an  act  of  grace;  and  a  state  may  refuse  to  recognize  a 
foreign  corporation  except  upon  its  own  conditions:  Erie  Sailroad  Co.  v.  State, 
86  Id.  226,  note  240.  Corporation  of  another  state,  having  there  obtained  a 
judgment  against  another  corporation  of  that  state,  may  maintain  a  suit  for 
discovery  against  the  officers  of  such  other  corporation  in  this  state:  Post  v. 
Toledo  etc.  B.  E.  Co.,  59  Am.  Rep.  86. 

Corporations  may  now  Hold  as  Trustees:  Commissioners  qfihe  Sinking 
Fund  V.  WaUcer,  38  Am.  Dec.  433. 

Corporations  as  Trustees.  —  Corporations,  unless  specially  authorized, 
cannot  be  seised  of  lands  to  the  use  of  another:  Greene  v.  Dennis,  16  Am. 
Dec.  68. 

Rule  or  Connr  does  not  Require  Courts  of  One  State  to  enforce 
the  law  of  another,  where  the  law  of  the  latter  state  clashes  with  the  rights 
of  the  citizens  of  the  former,  or  with  the  policy  of  its  laws:  Kanaga  v.  Tay» 
lor,  70  Am.  Dec.  62;  McLean  v.  Hardin,  69  Id.  740,  and  note  743;  Waliert 
and  WaUcer  v.  Whitlock,  76  Id.  607.  Comity  between  states,  so  far  as  rights, 
privileges,  and  immunities  are  not  guaranteed  by  the  federal  constitution, 
cannot  be  urged  as  against  the  laws  and  policy  of  the  state  where  it  is  in« 
Toked:  Donovan  v.  Pitcher,  25  Am.  Rep.  634. 

Payment  Voluntarily  Made  to  Foreign  Administrator  by  debtors  of 
deceased  are  held  effectual  in  the  courts  of  New  York  on  principles  of  na« 
tioual  comity:  Petersen  v.  Chemical  BaiHc,  88  Am.  Dec.  298,  note  308. 


Coooh's  Executor  v.  Cooch's  Administrator. 

[5  Houston,  640.] 
Personal  Estate  of  Testator  is  Primarily  Chargeable  with  the  pay* 

ment  of  his  debts  and  legacies,  and  with  the  payment  of  liens  on  his  real 

estate. 
Lboaoizs  of  Specific  Nature  are  paid  before  general  ones. 
Bbquist  of  "All  my  Personal  Estate"  means  the  balsuice  of  personal 

estate  after  the  payment  therefrom  of  testator's  debts,  and  other  legal 

charges. 
SFxano  Legacies  ark  Sucn  only  as  Designate  Particular  Things,  or 

things  by  a  particular  description. 
BiguBST  OF  All  a  Man's  Personal  Property  is  not  a  specific  legacy.     Its 

import  is  the  same  as  is  expressed  by  the  words,  "  rest  and  residue." 
Old  Rule  that  Personal  Property  must  First  be  Exhausted  in  the 

payment  uf  tetitator's  debts  is  not  changed  by  our  system  of  settlement 

of  estates,  under  which  all  testator's  property,  real  as  well  as  personal, 

is  responsible  for  such  payment. 

Am.  Bt.  Rsr.,  Vol.  I.  — 11 


162  Cooch's  Ex'r  v.  Cooch's  Adm'r.      [Delaware, 

Real  Estate  is  kbver  Charged  with  PATMEirr  of  Debts  aitd  Lxoa- 
CIES  while  there  is  personal  property  remaining,  unless  such  an  inten- 
tion, together  with  a  direction  that  the  personalty  be  exempt,  ia  expressly 
declared,  or  may  be  fairly  inferred  from  the  language  of  the  will. 

SrxciFio  Bequest  of  Febsonal  Fboperty  is  subject  to  payment  of  testa- 
tor's debts,  unless  his  realty  is  charged  with  their  payment. 

Action  for  the  construction  of  a  will  by  the  executor  of 
Tamar  Cooch,  deceased,  against  the  administrator  cum  testa- 
mento  annexo  of  William  Cooch,  deceased. 

Patterson,  for  the  appellant. 
Gray,  for  the  respondents. 

By  Court,  Comegys,  C.  J.  The  controversy  between  the 
parties  in  this  case  arose  out  of  the  will  of  William  Cooch 
(the  husband  of  the  appellant's  testratrix),  which  is  in  these 
words:  — 

"  In  the  name  of  God,  amen.  I,  William  Cooch,  of  Penca- 
dor  Hundred,  New  Castle  County,  and  state  of  Delaware, 
being  of  sound  and  disposing  mind  and  memory,  do  make 
and  declare  this  to  be  my  last  will  and  testament,  hereby  re- 
voking all  former  wills  heretofore  made  by  me. 

"  Item  1.  It  is  my  desire  and  wish  that  my  executor,  here- 
after named,  shall  pay  all  my  just  debts  and  funeral  expenses 
as  soon  after  my  decease  as  possible. 

"  Item  2.  I  give,  devise,  and  bequeath  to  my  beloved  wife, 
Tamar,  all  my  personal  property,  and  three  thousand  five 
hundred  dollars  in  cash  out  of  my  real  estate,  as  soon  as  sold 
by  my  executor. 

"  Item  3.  I  devise,  give,  and  bequeath  to  Dillon  Hutchison 
the  sum  of  five  hundred  dollars. 

"  Item  4.  I  devise,  give,  and  bequeath  to  my  brothers  Zebu- 
Ion  H.  Cooch  and  Levi  G.  Cooch  the  balance  of  my  estate,  to 
be  divided  between  them,  share  and  share  alike. 

"It  is  my  desire  and  wish  that  my  executor,  hereinafter 
named,  shall  sell  all  my  real  estate  at  public  sale  within  one 
year  after  my  decease,  and  convey  to  the  purchaser  or  pur- 
chasers thereof  a  good  and  lawful  deed  or  deeds  for  the  same. 

"  I  do  hereby  nominate  and  appoint  my  brother,  Levi  G. 
Cooch,  to  be  my  executor  of  this  my  last  will  and  testament. 

'*  In  witness  whereof,"  etc. 

The  appellant  conceived  his  testatrix  to  be  entitled  under 
this  will  to  all  the  personal  estate  of  her  husband,  without  any 
deduction   therefrom  whatsoever;   and  the   respondents,  not 


June,  1879.]     Cooch*s  Ex'r  v.  Cooch's  Adm*r.  163 

admitting  such  claim,  the  bill  which  forms  part  of  the  record 
before  us  was  brought  to  determine  that  question.  The  case 
presented  by  it  having  been  so  conducted  on  both  sides  as  to 
require  of  the  chancellor  a  decision  of  the  matter  in  contro- 
versy, he  made  it  on  the  twenty-first  day  of  February  last, 
denying  the  claim  of  the  complainant  in  his  court.  From 
that  decision  this  appeal  was  taken,  and  we  have  been  favored 
by  the  chancellor,  in  the  opinion  expressed  by  him  in  the 
cause,  and  now  read  to  us,  with  the  reason  or  grounds  upon 
which  he  based  his  decree.  Such  reasons  are  full  and  lucid; 
and  we  proceed  to  give  our  views  of  the  law  by  which  this 
court  is  to  decide  whether  they  are  suflBcient  or  not  in  our 
judgment. 

There  are  certain  well-established  and  reasonable  rules 
which  serve  as  a  sure  guide  to  courts  in  the  decision  of  such 
questions  as  that  presented  by  the  record  in  this  case,  and 
which  are  by  no  means  new,  but  are  so  old  as  to  have  become 
venerable  landmarks  of  equity  decisions  in  cases  of  this  nature 
under  wills.  They  are  those  for  the  administration  of  the 
estates  of  all  testators,  and  have  so  long  prevailed  as  to  be 
entitled  to  the  appellation  of  maxims.  They  are  as  follows: 
1.  The  personal  estate  of  a  testator  is  the  primary  fund  for 
the  payment  of  his  debts,  and  of  such  legacies  as  he  may 
choose  to  give;  2.  In  the  payment  of  legacies  those  of  a  spe- 
cific nature  are  to  be  paid  before  general  ones;  3.  The  real 
estate  is  not  liable  for  the  payment  of  either  debts  or  legacies, 
unless  the  testator  has  unequivocally  so  declared  in  his  will. 

With  respect  to  this  rule  we  may  now  say,  as  we  shall 
repeat  hereafter,  that  in  this  state  all  the  property  of  a  testa- 
tor is  subject  to  the  payment  of  his  debts,  but  the  real  is  only 
to  be  resorted  to  for  that  purpose,  even  in  the  case  of  liens 
upon  it,  after  and  not  until  the  personal  estate  has  been  ex- 
hausted, which  still  preserves  the  rule  that  the  personal  estate 
is  the  primary  fund  for  the  payment  of  a  testator's  debts.  Of 
course  we  are  not  to  be  understood  as  speaking  of  liens  which 
the  creditor  proceeds  to  enforce. 

We  did  not  understand  the  learned  solicitor  for  Tamar 
Cooch's  executor  to  make  any  contention  with  the  respond- 
ents upon  this  view  of  the  law,  but  he  did  insist,  and  exhibited 
his  usual  industry  in  collecting  and  citing  authorities  to  sus- 
tain his  view,  that  according  to  the  true  legal  construction  of 
the  will  of  her  husband,  her  executor  is  entitled  to  the  whole 
personal  estate  of  the  testator,  and  that  by  force  of  the  terms  used 


164  Cooch's  Ex'r  v.  Cooch's  Adm'b.      [Delaware, 

by  him  all  his  debts,  funeral  charges,  and  expenses  of  adminis- 
tration are  thrown  upon  the  proceeds  of  the  sale  of  the  real  estate, 
which  is  substituted  in  lieu  of  the  personal  for  the  payment 
and  discharge  of  them;  and  he  founds  or  places  his  argument 
or  contention  upon  the  express  words  of  the  second  item  of 
the  testator's  will:  "I  give,  devise,  and  bequeath  to  my  be- 
loved wife,  Tamar,  all  my  personal  property,  and  three  thou- 
sand five  hundred  dollars  in  cash  out  of  my  real  estate  as  soon 
as  sold  by  my  executor." 

If  the  .question  presented  by  the  solicitor  for  the  appellant 
had  never  been  decided,  we  might  possibly  take  the  view  of  it 
Bubmitted  by  him,  and  conclude  that  the  chancellor  erred,  and 
that  the  appellant  could  claim  the  whole  personalty  of  the 
testator,  and  that  such  claim  should  be  allowed;  but  such 
question  has  been  passed  upon  and  determined  over  and  over 
again  by  courts  of  equity,  whose  concern  it  is  chiefly  to  inter- 
pret wills;  and  never,  in  cases  having  no  special  features  more 
than  this  case  has,  has  it  been  decided  otherwise  than  that 
the  personal  estate  must  first  be  applied  to  the  payment  of 
debts  before  resort  can  be  had  to  the  real  estate.  The  very 
words  used  in  this  case,  "  all  my  personal  estate,"  have,  in 
the  numerous  instances  produced  by  the  learned  solicitor  for 
the  appellees  in  his  forcible  argument  in  their  behalf,  under- 
gone the  most  critical  and  exhaustive  examination  that  minds 
of  the  highest  order  of  legal  acumen  could  give  to  them,  and 
they  have  always  (where  there  were  no  expressions  in  the  will 
that  required  a  difierent  construction)  been  held  to  mean  sim- 
ply the  balance  of  the  personal  estate  that  should  be  left  after 
the  payment  of  the  debts  of  the  testator  and  other  legal 
charges,  such  as  those  of  burial  and  of  administration.  We  are 
not  aware  of  any  cases  in  contravention  of  this  view,  or  that 
would  justify  us,  as  a  court  of  review,  in  departing  from  the 
old  accustomed  pathway  of  the  law.  In  looking  through  this 
whole  case,  with  the  will  of  William  Cooch  and  all  its  pro- 
visions or  clauses  in  our  mind,  we  do  not  see  how  we  can  do 
otherwise  than  confirm  and  establish  the  chancellor's  decree. 

A  case  in  some  respects  similar  to  the  present  (though  there 
were  many  difierent  circumstances  or  facts  in  it)  came  before 
this  court,  and  was  decided  at  the  June  term,  1872.  It  was 
that  of  Morris  v.  Morris's  Ex'r,  4  Houst.  414,  involving  the 
construction  of  Elijah  Morris's  will.  While  the  expression  in 
it  is  not  the  same  exactly  as  that  in  Cooch's  will,  yet  the 
question  was  so  much  the  same  that  the  court  felt  called  upon» 


June,  1879.]     Cooch's  Ex'k  v.  Cooch's  Adm'r.  165 

and  properly,  to  express  its  opinion  in  language  involving  the 
very  considerations  this  case  requires.  His  honor  Judge 
Wootten,  in  the  judgment  of  the  court  then  declared,  and 
epeaking  the  sense  of  all  its  members,  said  the  import  of  the 
words  "  balance  of  my  whole  estate,  after  deducting  the  afore- 
Baid  legacies,"  being  in  question,  "  this  cannot  mean  the  whol» 
original  estate,  but  it  is  the  residue  remaining  after  the  pay* 
ment  of  the  debts;  that  residue  is  what  constitutes  a  man's 
estate;  and  when  we  speak  of  our  own  or  another's  estate,  we 
mean  that  which  remains  clear  for  distribution  after  the  pay- 
ment of  debts.  Whatever  is  necessary  for  the  payment  of  a 
deceased  man's  debts  belongs  to  his  creditors,  and  cannot 
properly  be  considered  any  part  of  his  estate  for  distribution, 
and  especially  when  we  apply  the  act  of  distribution;  for  no 
matter  how  much  property  he  may  have  in  possession,  if  it 
is  not  more  than  sufficient  to  pay  his  debts,  he  has  no  dis- 
tributive estate.  This  is  true,  not  only  in  a  common-sense 
view,  but  in  legal  contemplation."  We  not  only  feel  ourselves 
bound  by  the  words  of  the  court,  spoken  by  its  organ  for  that 
case,  but  independently  we  decide  that  there  is  nothing  in  the 
will  of  William  Cooch  that  would  justify  us  in  reversing  the 
decree  of  the  chancellor,  which,  to  say  nothing  of  its  suffi- 
cient reasoning,  is  strictly  in  accord  with  the  law  as  we  take 
it  to  be. 

In  this  case  there  is  no  question  between  legatees;  it  is 
simply  one  between  the  devisees,  in  effect,  of  the  real  estate, 
and  the  legatee  of  the  personal;  and  we  have  been  unable  to 
find  any  case,  nor  has  the  learned  solicitor  for  the  appellant 
furnished  us  with  any,  which  decides  that  the  words,  "  all  my 
personal  estate,"  in  a  will  like  that  before  us,  have  been  held 
to  cast  the  payment  of  debts,  expenses  of  administration,  and 
legacies  upon  the  realty.  Much  stress  was  laid  by  him  upon 
the  fact  (which  he  assumed)  that  the  bequest  to  the  widow 
was  specific;  but  we  do  not  agree  with  him  that  it  was 
specific  in  any  legal  sense,  although  it  was  of  all,  etc.  A 
legacy  is  only  specific  when  it  designates  a  particular  thing 
or  things  by  specific  description,  as  my  bay  mare,  ray  gold 
watch,  my  shares  of  stock  in  such  a  bank,  or  the  like;  or 
mentions  some  place  where  the  thing  itself  can  be  found,  as 
my  bank  notes  in  a  certain  drawer;  or  indicates  some  part  of 
the  personal  estate  consisting  of  various  articles  wliich  can  be 
easily  distinguished  and  set  apart  from  the  residue,  as  all  my 
personal  property  in  a  certain  room,  house,  hundred,  county, 


166  Cooch's  Ex'r  v.  Cooch's  Adm'r.      [Delaware, 

etc.  Cases  of  a  similar  kind  will  be  found  referred  to  in  part 
2  of  Redfield  on  Wills,  475,  where  will  also  be  found  authority 
for  the  principle  that  a  bequest  of  all  a  man's  personal  prop- 
erty is  not  a  specific  legacy.  Where  it  is  of  all  merely, 
indicating  no  locality  or  more  particular  specification,  it  is 
general,  the  same  as  is  imported  by  the  words  "rest"  and 
'*  residue,"  because  such  word  means  what  every  testator  mast 
be  taken  to  know,  —  the  balance  after  payment  of  debts,  etv ., 
—  the  law  being  that  the  personal  estate  must  first  be  ex 
hausted  before  resort  can  be  had  for  such  payment  to  the 
realty.  Every  testator  is  presumed  to  know  the  law  with  re- 
spect to  the  liability  of  his  estate  for  his  debts,  and  conse 
quently  to  make  disposition  of  it  in  accordance  with  such 
knowledge.  Therefore  it  is  that  where  a  testator  even  uses 
such  sweeping  and  apparently  conclusive  words  in  disposing 
of  his  personalty  as  "  all  my  personal  estate  "  the  law  still 
holds  that  he  only  meant  such  portion  of  it  as  should  be  left 
after  taking  from  it  all  that  it  was  liable  to,  either  as  matter 
of  legal  responsibility  for  debts,  funeral  expenses,  and  charges 
of  administration,  or  on  account  of  some  further  deduction 
which  the  provisions  of  his  will  requires,  —  for  example,  a 
specific  'legacy.  The  authorities  axe  abundant  upon  this 
point,  and  were  fully  laid  before  us  in  the  argument  in  June 
last;  it  is  unnecessary  to  recite  them  here.  And  further, 
there  is,  in  our  opinion,  no  warrant  for  the  position  assumed 
by  the  learned  solicitor  for  the  appellant  that  this  bequest  is 
specific.  We  have  before  given  examples  of  specific  legacies; 
we  now  refer  to  authorities  in  like  cases  of  specification:  Sayer 
V.  Sayer,  2  Vern.  688;  Prec.  Ch.  392;  Gilb.  Ex.  Rep.  87;  Green 
V.  Symonds,  1  Bro.  C.  C.  129,  in  notes;  Moore  v.  Moore,  1  Id. 
127;  Gayre  v.  Gayre,  2  Vern.  538;  Shaftsbury  v.  Shaftsburyy 
2  Id.  747;  Land  v.  Devaynes,  4  Bro.  C.  C.  537;  Clarice  v.  Butler, 
1  Mer.  304.  The  principle  is  the  severance  of  the  particular 
property  from  the  great  body  of  the  estate,  and  the  specific 
gift  of  it  to  the  legatee:  1  Roper  on  Legacies,  243.  Where 
there  are  no  such  restrictive  expressions,  a  legacy  of  personal 
estate  generally  will  be  general,  and  not  specific;  and  even  the 
circumstance  that  the  real  and  personal  estates  are  blended 
together  will  make  no  difference,  although  as  to  the  former 
the  devise  must  necessarily  be  specific:  Id.;  2  Williams  on 
Executors,  849. 

But  of  course  the  case  is  difierent  when  a  testator  exon- 
erates his  personal  estate  from  the  payment  of  his  debts,  and 


June,  1879.]     Cooch's  Ex'r  v.  Cooch's  Adm'b.  167 

casts  that  burden  upon  his  realty.  Whenever  that  occurs,  the 
primary  liability  is  transferred  from  the  personal  and  thrown 
upon  the  real,  and  the  latter  is  the  source  to  which  the  execu- 
tor must  first  apply.  There  is  no  doubt  of  that.  When  the 
intention  of  a  testator  to  create  a  new  fund  for  the  payment 
of  his  debts  appears  plain,  that  fund  must  first  be  resorted  to 
if  he  has  so  expressed  himself.  But  before  that  is  taken  as  a 
fact,  there  must  be  no  doubt  left  upon  the  face  of  the  will;  it 
must  plainly  appear  by  it  that  the  testator  so  meant.  This  i& 
not  to  be  settled  by  conjecture  or  mere  inference,  but  is  to  be 
shown  by  unequivocal  language  or  expressions  contained  in 
the  paper  itself.  There  must  be  something  the  courts  will 
recognize  as  suflBcient  for  that  purpose  to  justify  them  in  de- 
parting from  the  old,  established,  certain  rule,  that  the  pri- 
mary fund  for  payment  of  debts  is  a  testator's  personal  estate. 
And  our  system  of  settlement  of  estates,  under  which  all  a 
man's  property,  as  well  real  as  personal,  is  responsible  for  his 
debts,  does  not  affect  the  rule;  for  the  primary  liability  is  still 
on  the  latter,  and  there  remains  until  it  is  exhausted.  In 
England,  the  real  estate  was  not  liable  for  simple  contract 
debts  at  all  unless  made  so  by  a  testator;  but  here  it  has 
always  been  otherwise,  and  the  law  as  uniform  as  it  is  now. 
But  notwithstanding  the  difference,  the  first  fund  to  be  taken 
has  always  been  the  personal,  the  real  being  merely  auxiliary 
or  secondary. 

Now,  in  looking  through  the  will  that  forms  part  of  the 
record  before  us,  we  do  not  find  any  clause,  word,  or  expres- 
sion that  would  allow  us  to  depart  (if  we  were  inclined  to  do 
Bo)  from  the  established  line  of  decisions  upon  questions  such 
as  are  by  that  record  presented  to  us.  There  is  certainly 
nothing  said  about  exempting  the  personal  estate  from  the 
payment  of  the  testator's  debts,  nor  is  any  language  used  that 
can  fairly  bo  construed  as  favoring  the  notion  of  such  an  in- 
tent. There  is  not  even  any  charge  of  the  real  estate  with 
them,  though  that  by  itself  would  mean  nothing  more  than 
that  they  should  be  paid  at  all  events.  Nor  does  the  testator 
direct  that,  to  insure  the  payment  of  his  debts,  his  real  estate 
should  be  turned  into  money,  and  made  part  of  the  personal. 
If  he  had  gone  as  far  as  that  even,  still  the  first  fund  to  be 
taken  would  be  personalty;  as,  by  a  well-known  rule,  the  resi- 
due of  such  real  estate,  after  such  charge  upon  or  with  respect 
to  it  had  been  liquidated,  would  descend  to  the  heir  or  pass 
to  the  devisee  qua  realty,  he  having  the  right  to  redeem  it 


168  Cooch's  Ex'r  v.  Cooch's  Adm'k.      [Delaware, 

from  sale,  and  take  it  as  heir  or  devisee,  according  as  it  may 
have  been  undevised  or  devised. 

But,  in  reality,  the  will  itself  negatives  the  idea  that  the 
land  of  William  Cooch  was  devoted  by  him  as  the  first  fund 
for  the  payment  of  his  debts.  The  language  of  the  first  item 
is,  that  the  executor  shall  pay  all  the  just  debts  and  funeral 
expenses  of  the  testator  as  soon  after  his  decease  as  possible 
and  in  the  second  paragraph  of  the  fourth  item,  he  expresses 
his  desire  and  wish  that  his  real  estate  shall  be  sold  within  a 
year  from  the  time  of  his  death,  thus  allowing  the  executor  a 
full  year  to  find  an  advantageous  period  to  ofier  his  land  for 
sale.  If  anything  could  be  wanting  to  furnish  us  with  assur- 
ance that  the  conclusion  we  are  about  to  announce  is  the  cor- 
rect one,  these  clauses  would  be  suflScient  to  do  it.  The 
testator  evidently  contemplated  that  his  personal  estate  should 
be  at  once,  in  the  usual  course,  converted  into  money  to  satisfy 
his  creditors,  and  his  land  in  a  reasonable  time  to  raise  the 
money  to  be  paid  out  of  it. 

The  question  is.  Did  William  Cooch,  by  his  will,  intend 
that  his  real  estate  should  be  resorted  to  before  his  personal 
in  the  settlement  of  his  estate?  As  we  do  not  find  in  that 
will  any  language  that  requires  of  us  to  say  that  he  did,  the 
bequest  to  his  wife  being  a  general  and  not  a  specific  legacy, 
and  that  bequest  alone  being  the  source  to  which  we  have 
been  referred  and  must  resort  for  such  a  conclusion,  and  the 
two  clauses  of  the  will  we  have  just  referred  to  being,  as  we 
think,  at  variance  with  the  idea  of  substitution,  we  are  of 
opinion  and  decide  that  the  decree  of  the  chancellor  in  the 
court  below  was  right,  and  should  be  afl5rmed. 

Wales,  J.  The  general  rule  is  well  settled  that,  in  the  ab- 
sence of  express  words  or  manifest  intent  of  the  testator,  his 
personal  estate  is  primarily  liable  for  the  payment  of  his  debts: 
Duke  of  Ancaster  v.  Mayer,  1  Bro.  C.  C.  454;  Samwell  v.  Wake, 
1  Id.  145;  Dick.  597;  Walker  v.  Jackson,  2  Atk.  625;  Tail  v. 
Lord  Northwick,  4  Ves.  824.  The  doctrine  is  clearly  stated  by 
Sir  William  Grant,  in  Hancox  v.  Abbey,  11  Id.  186,  as  being 
perfectly  established,  that  in  order  to  exonerate  the  personal 
estate  there  must  be  either  express  words  or  a  plain  intention. 
Precise  and  specific  words  of  exemption  are  not  necessary,  but 
it  is  suflQcient  if  the  intention  can  be  collected  from  the  whole 
will  to  give  the  personal  estate  exemption  from  the  debts.  Mr. 
Jarman,  in  his  treatise  on  wills,  after  a  full  discussion  of  the 


June,  1879.]    Cooch's  Ex'b  v.  Cooch's  Adm'b.  169 

authorities,  remarks:  "These  cases  seem  to  authorize  the 
proposition  that  whenever  the  personal  estate  is  bequeathed  in 
terms  as  a  whole,  and  not  as  a  residue,  and  the  debts,  funeral, 
and  testamentary  charges  are  thrown  on  the  real  estate,  this  con- 
stitutes the  primary  fund  for  their  liquidation":  2  Jarraan  on 
Wills,  586.  This  rule,  and  the  principles  on  which  it  is  founded, 
have  been  fully  recognized  and  accepted  by  the  courts  in  this 
country:  1  Story's  Eq.  Jur.,  sees.  572,  573;  Lupton  v.  Lupton,  2 
Johns.  Ch.  623;  Walker's  Estate,  3  Rawle,  229.  In  England, 
real  estate  is  not  liable  for  the  payment  of  simple  contract 
debts.  Here  that  estate  is  subject  to  the  demands  of  all  the 
creditors  of  the  deceased,  but  not  until  the  personal  estate  has 
been  exhausted,  when  it  becomes  the  auxiliary  fund  for  the 
payment  of  debts.  Hence  the  doctrine  of  the  English  courts 
of  equity  has  been  adopted,  that  not  only  must  the  testator 
charge  his  lands  with  the  payment  of  his  debts,  but  must 
also  show  his  intention  to  exempt  the  personalty.  If  the  per- 
sonal estate  has  been  specifically  bequeathed,  and  the  lands 
directed  to  be  sold  for  the  payment  of  debts,  the  personal  is 
held  to  be  exempted  by  necessary  implication.  But  the  tes- 
tator is  always  presumed  to  act  upon  the  legal  doctrine  that 
the  personal  estate  is  the  natural  and  primary  fund  for  the 
payment  of  all  debts  until  he  shows  some  other  distinct  or 
unequivocal  intention.  In  Lupton  v.  Lupton,  2  Johns.  Ch. 
623,  Chancellor  Kent  states  the  rule  broadly,  and  as  not  ad- 
mitting of  dispute,  that  the  real  estate  is  not  as  of  course 
charged  with  payment  of  legacies.  It  is  never  charged  un- 
less the  testator  intended  it  should  be,  and  that  intention 
must  be  either  expressly  declared  or  fairly  and  satisfactorily 
inferred  from  the  language  and  dispositions  of  the  will.  It  is 
not  sufficient  that  debts  or  legacies  are  directed  to  be  paid, — 
that  alone  does  not  create  the  charge, — but  they  must  bo 
directed  to  be  first  or  previously  paid,  or  the  devise  declared 
to  be  made  after  they  are  paid.  Where  there  is  an  express 
bequest  of  all  the  testator's  personal  estate  (with  or  without 
an  enumeration  of  particular  articles),  and  the  will  also  con- 
tains a  charge  of  debts  upon  the  real  estate,  these  facts  have 
sometimes  been  held  to  favor  the  exemption  of  the  personalty. 
But  the  position  is  nowhere  sustained  that  u  specific  bequest 
of  the  personal  estate,  without  a  charge  on  the  lands  for  the 
payment  of  debts,  will  exonerate  the  former:  Hill  on  Trus- 
tees, 352;  1  Lead.  Cas.  Eq.  918. 
Applying  these  rules  of  construction  to  the  interpretation  of 


170  Cooch's  Ex'r  v.  Cooch's  Adm'b.      [Delaware, 

Mr.  Cooch's  will,  in  which  are  no  express  words  of  exemption, 
resort  must  be  had  to  the  intention  of  the  testator  in  order  to 
ascertain  what  was  his  wish  in  respect  to  the  payment  of  his 
debts.  The  first  item  contains  the  general  and  usual  direction 
to  his  executor  to  pay  his  debts  and  funeral  expenses.  By  the 
second,  he  bequeaths  to  his  wife  "  all  my  personal  property,  and 
three  thousand  five  hundred  dollars  in  cash  out  of  my  real 
estate  as  soon  as  sold  by  my  executor."  By  the  third,  he 
gives  to  D.  Hutchison  five  hundred  dollars.  By  the  fourth, 
he  gives  to  his  brothers  "the  balance  of  my  estate  to  be 
divided  between  them,  share  and  share  alike."  Finally,  he 
empowers  his  executor  to  sell  his  real  estate  at  public  sale 
within  one  year  after  his  decease.  The  question  is,  What  does 
the  testator  mean  by  "the  balance  of  my  estate"?  Do  these 
words  signify  what  may  remain  or  be  left  after  all  the  personal 
property  has  been  given  to  the  wife,  and  the  debts  and  legacy 
to  Hutchison  have  been  paid  out  of  the  proceeds  of  the  sale 
of  the  land?  And  is  the  inference  plain  from  the  context  of 
the  whole  will  that  the  intention  is  to  cast  the  burden  of  the 
debts  upon  the  real  estate?  It  would  be  begging  the  question 
to  say  that  the  inquiry  suggests  a  doubt,  and  there  is  there- 
fore no  plain  declaration  or  manifest  intent  to  change  the  legal 
order  of  payment. 

It  cannot  be  denied  that  in  the  expressions  and  terms  of 
this  will  there  is  room  for  conjecture  that  the  testator  may 
have  desired  to  leave  to  his  wife  all  his  personal  property  free 
and  discharged  from  the  payment  of  his  debts,  but  there  is  no 
plain  declaration  or  manifest  intent  to  that  efiect.  He  neither 
discharges  the  personal  nor  charges  the  real  estate,  and  he  is, 
in  the  language  of  Judge  Story,  presumed  to  act  upon  the 
legal  doctrine  that  his  personal  estate  is  the  natural  and  pri- 
mary fund  for  the  payment  of  his  debts  until  some  other  dis- 
tinct and  unequivocal  intention  be  shown.  The  object  in 
selling  the  real  estate  appears  to  have  been  to  secure  the  cash 
payment  of  thirty-five  hundred  dollars  to  his  wife,  and  the 
division  of  "  the  balance  "  of  the  proceeds  of  such  sale  between 
his  two  brothers.  This  was  the  purpose  of  the  conversion  of 
the  real  estate,  and  in  this  respect  it  differs  from  the  case  of 
Sharpley  v.  Forwood's  ExWs,  4  Harr.  336,  where  the  court  held 
that  if  there  be  no  direction  as  to  the  object  of  the  conversion, 
and  the  land  is  directed  to  be  sold,  it  is  a  change,  out  and  out, 
of  the  realty.  Here  there  is  a  special  direction  to  pay  the  wife 
three  thousand  five  hundred  dollars  out  of  the  real  fund,  and 


June,  1879.]     Cooch's  Ex'r  v.  Cooch's  Adm'b.  171 

to  divide  the  balance  between  the  brothers.  There  is,  then, 
no  fair  or  satisfactory  inference  to  be  drawn  from  the  context 
that  Mr.  Cooch  intended  to  exonerate  his  personal  estate.  As 
was  said  by  the  master  of  the  rolls  in  Brydges  v.  Phillips,  6 
Ves.  570,  it  is  only  a  probable  conjecture.  There  is  no  cer- 
tainty, no  clear,  unambiguous  intention  to  be  collected  from 
the  whole  will,  that  he  meant  that.  There  is  no  ground  upon 
which  to  judicially  collect  a  settled  intention.  The  word 
"  all "  prefixed  to  "  my  personal  estate  "  is  not  sufficient  to 
make  a  specific  legacy,  which  is  of  a  particular  and  individual 
character,  precisely  described  and  limited  as  to  its  nature, 
value,  or  the  place  where  it  may  be  found.  But  admitting 
the  legacy  to  the  wife  to  be  a  specific  one,  the  debts  must  stiD 
be  paid  out  of  the  personalty,  unless  there  is  at  the  same  time 
an  express  charge  on  the  realty  for  that  purpose,  or  an  evident 
intention  to  make  the  charge.  A  testator  must  comply  with 
the  rules  of  construction  and  the  settled  principles  of  law, 
which  have  been  established,  as  well  to  carry  out  his  intention, 
where  it  is  consistent  with  them,  as  to  administer  the  estates 
of  deceased  persons,  according  to  a  fixed  and  regular  order. 
Looking  at  the  will  alone,  and  extracting  its  meaning  by  in- 
trinsic evidence,  there  is  wanting  that  clear,  unequivocal,  and 
manifest  intent  which  is  required  to  exempt  the  natural  and 
primary  fund,  and  to  throw  the  burden  upon  the  real  estate. 


EsTATK  07  I>ECKAS£D  PERSON  Vests  IN  HIS  Keirs,  subject  to  the  ex- 
penditure by  hia  ezecxrtor  or  administrator  of  amount  necessary  to  pay  hia 
debts:  Chambers's  AdrrCr  v.  Wright's  Hdrs,  93  Am.  Dec.  311. 

Leoal  Title  to  Decedent's  Lands  Decends  to  and  Vests  in  his 
Heibs  at  Law;  but  under  the  statutes  of  Arkansas  such  lands  are  assets  in 
the  hands  of  his  executor  or  administrator:  Camall  v.  Wilson^  76  Am.  Dec. 
351,  and  note  357.  Where  deed  is  made  to  certain  persons  described  therein 
M  "  heirs  and  legal  representatives  of  John  Sage,  deceased,"  the  grantees  take 
■nch  land  in  their  representative  capacity,  and  subject  to  payment  of  debts 
of  decedent:  Sage  v.  McCalUster,  67  Id.  689. 

Real  Estate  is  not  Merely  Secondary  Fund  fob  Payment  of  De- 
cedent's Debts.  Hia  real  and  personal  estate  are  equally  liable.  Act  of 
6  Geo.  n.,  0.  7,  seo.  4,  subjecting  decedent's  whole  estate,  both  real  and  per- 
sonal, to  payment  of  his  debts,  was  by  act  of  Congress  the  law  of  the  District 
of  Columbia  from  and  after  June  24,  1812:  Buckley's  Adm'r  v.  Rotchford,  65 
Am.  Dec.  240. 

Fkbsonal  Estate  of  Decedent  Principally  Liable  for  Payment  of 
DnTB:  Buckley's  Adm'r  v.  Rotch/ord,  65  Am.  Dec.  240,  note  247. 

ExaouTOR  or  Administrator,  at  Common  Law,  could  not  sell  real  estate 
of  deceased  for  the  payment  of  bis  debts,  unless  it  was  expressly  charged 
lor  that  purpose:  Ticlnor  v.  Harris,  40  Am.  Dec.  18(iw     Property  iu  hands  of 


172  Cooch's  Ex'r  v.  Cooch*s  Adm*b.      [Delaware. 

heirs,  deyiseea,  or  aliens,  may  be  reached  for  payment  of  decedent's  debts: 
Id.,  note  193. 

Bkal  Estatk  is  not  Chasoxabls  with  Payment  of  Leqacies  mdess 
such  an  intention  ia  expressed  by  testator:  Knotta  v.  Bailey,  28  Am.  B«p. 
348.  Fntore  vested  interests  may,  by  proceedings  in  equity,  be  subjected  to 
payment  of  decedent's  debts:  May  v.  May,  68  Am.  Dec.  431.  At  common 
law,  personal  estate  of  intestate  remained  in  abeysmce  until  the  appointment 
of  his  personal  representative,  when  it  vested  absolutely  in  him:  Analey  v. 
Baier,  65  Id.  136,  and  note  140.  Where  devisee  of  real  estate  is  appointed 
executor,  and  is  expressly  directed  to  pay  legacies,  such  direction  is  sufficient 
to  create  a  charge  on  such  real  estate  for  the  payment  of  said  legacies: 
Thayer  v.  Fmnegan,  45  Am.  Rep.  285.  Circumstances  under  which,  by  stat- 
ute, a  sale  of  testator's  lands  is  authorized  for  the  payment  of  his  debts: 
Mosely  v.  TttthUl,  6  Id.  710.  A  general  or  residuary  devise  of  lands,  "after 
the  payment  of  legacies,"  charges  those  lands  with  the  payment  of  legacies, 
but  snch  lands  are  not  subject  to  the  payment  of  a  specific  devise  in  a 
former  clause  of  the  will  to  which  particular  conditions  are  annexed,  though 
the  devisee  is  also  nominated  as  executor:  Newaon  v.  Thornton,  60  Id.  743. 
Bequest  of  the  "balance  of  my  real  estate,"  held  a  specific  bequest:  Hender» 
•on  V.  Qreen^  11  Id.  149. 


CASES 


SUPREME    COURT 


ov 


FLORIDA. 


KuETz  V.  State. 

[22  Floeica,  86.1 

PuomvES  vsoM  Justice  —  CoNsrrnrrioNALrrT  or  State  Law. — The  state 
statute  of  the  17th  of  February,  1881,  authorizing  arrest  and  detention 
of  fugitives  from  justice,  does  not  conflict  with  section  2,  article  4,  of 
the  constitution  of  the  United  States,  or  with  sections  5278  and  5279  of 
the  Revised  Statutes  thereof. 

Vtrornvi  from  Justice.  —  Either  the  original  affidavit,  or  a  copy  thereof  duly 
certified  as  authentic  by  the  governor  of  the  state  whence  the  fugi- 
tive  has  fled,  is  sufficient  to  authorize  the  action  of  the  governor  of  the 
state  where  the  fugitive  is  found.  Alleged  fugitive  from  justice  cannot 
impeach  the  validity  of  the  affidavit  upon  which  the  requisition  is  based, 
if  it  distinctly  charge  the  commission  of  an  ofiense. 

FcoiTiVB  TROM  JUSTICE.  —  Govemor  of  the  requesting  state  is  the  only  judge 
of  the  authenticity  of  the  affidavit. 

CXBTinCATE,  THAT  AFFIDAVIT   UPON   WhICH  REQUISITION   for   fugitive   from 

justice  is  founded  "  is  duly  authenticated  according  to  the  laws  of  said 
state,"  is  sufficient. 

"Magistrate."  —  This  word  in  section  5278,  Revised  Statutes,  relating  to 
fugitives  from  justice,  includes  an  assistant  police  magistrate  of  a  city. 

Maoistrate  is  Judicial  Officer  having  summary  jurisdiction  in  matters 
of  criminal  or  qitasi  criminal  nature.  Justices  of  the  peace,  police  jus- 
tices, and  American  consuls  in  foreign  ports  are  magistrates. 

Res  Adjudioata  does  not  Apflt  to  Judgkemts  on  luibecu  corjna  in  cases 
of  extradition. 

Ix  Habeas  Corpus  Proceedings  in  Extradition  Cases,  the  merits  of  the 
case  cannot  be  considered.  The  only  subjects  of  inquiry  are  the  suf- 
ficiency of  the  papers  and  the  identity  of  the  prisoner. 

Habeas  corpus  on  extradition  warrant.     Writ  of  error  to 
Ihe  circuit  court  for  Duval  County.     Michael  Kurtz  was  ar- 

178 


174  Kurtz  v.  State.  [Florida, 

rested  as  a  fugitive  from  justice  from  the  state  of  New  York, 
on  January  19  and  29, 1886,  and  from  both  arrests  was  dis- 
charged on  habeas  corpus.  He  was  rearrested  January  30, 1886, 
and  on  the  same  day  sued  out  another  writ  of  habeas  corpus, 
returnable  on  the  1st  of  February.  To  this  writ  the  sherifif 
made  return  that  Kurtz  was  in  his  custody  under  a  com- 
mitment issued  by  Marcy,  a  justice  of  the  peace  of  Duval 
County,  on  the  same  day.  The  judge  then  ordered  the  pris- 
oner to  be  remanded  to  the  custody  of  the  sherifif  pending  the 
arrival  of  extradition  papers.  The  sheriff  made  further  return 
on  the  eighth  day  of  February  that  he  held  the  prisoner  under 
a  warrant  issued  on  the  2d  of  February  by  the  governor  of  the 
state  of  Florida,  directing  him  to  arrest  Kurtz  and  deliver  him 
to  the  representative  of  the  state  of  New  York.  Kurtz  was 
remanded,  to  be  dealt  with  in  pursuance  of  the  governor's  war- 
rant, and  he  then  prosecuted  this  writ  of  error.  The  statute 
under  which  the  prisoner  was  sought  to  be  held,  and  the  val- 
idity of  which  his  counsel  assailed,  is  as  follows:  Section  1. 
Upon  an  aflfidavit  made  before  any  judge  or  justice  of  the 
peace  of  this  state,  that  any  person  within  the  territorial  juris- 
diction of  such  judge  or  justice  is  a  fugitive  from  justice  from 
another  state,  specifying  the  state  from  which  such  person  is  a 
fugitive,  and  the  crime  with  which  he  is  charged,  when  and 
where  committed,  and  that  there  is  a  warrant  for  his  arrest 
issued  by  a  competent  court  of  the  state  from  which  he  has 
fled,  such  judge  or  justice  of  the  peace  may  issue  a  warrant 
for  the  arrest  of  the  alleged  fugitive,  who,  when  arrested,  shall 
be  brought  at  once  before  the  judge  or  justice  issuing  the  war- 
rant, or  before  some  other  judge  or  justice  having  jurisdiction 
in  the  premises,  and  examined,  and  if,  upon  such  examina- 
tion, there  is  found  to  be  probable  cause  to  justify  the  deten- 
tion of  the  alleged  fugitive  he  may  be  committed  by  the  judge 
or  justice  for  a  period  of  time  not  to  exceed  ten  days,  to  await 
the  warrant  for  the  extradition  of  the  alleged  fugitive;  but  if, 
upon  such  examination,  there  is  not  found  probable  cause  to 
justify  the  commitment  of  the  alleged  fugitive  as  aforesaid,  he 
shall  be  at  once  discharged  from  custody.  Sec.  2.  No  judge, 
justice  of  the  peace,  sheriff,  constable,  or  other  officer,  shall  be 
obliged  to  take  any  action  in  or  about  the  arrest  and  detention 
of  such  alleged  fugitive  from  justice,  nor  shall  any  sheriff  or 
jailer  be  obliged  to  receive  or  keep  in  custody  such  alleged 
fugitive  without  prepayment  of  the  costs  to  which  the  officer 
of  whom  the  service  is  demanded  shall  be  entitled,  and  in 


Jan.  1886.]  Kurtz  v.  State.  175 

case  of  the  Bheriff  or  jailer,  upon  the  commitment  of  such 
alleged  fugitive  from  justice,  the  prepayment  of  the  jail  fees, 
including  the  cost  of  feeding  the  prisoner,  and  all  such  fees 
and  costs,  shall  be  the  same  as  are  or  may  be  provided  for  by 
law  in  like  cases,  and  neither  the  state  of  Florida  nor  any 
county  thereof  shall  be  responsible  or  liable  for  any  costs  or 
expenses  in  the  premises. 

F.  W.  Pope  and  0.  J.  Summers,  for  the  plaintiff. 

Charles  M.  Cooper^  attorney-general,  Call  and  Jones,  A.  W. 
Owens,  and  Randall,  Walker^  and  Foster,  for  the  defendant  in 
error. 

By  Court,  McWhorter,  C.  J.  The  first  question  brought 
to  our  attention  is  the  constitutionality  of  the  act  of  February 
17,  1881,  entitled  "An  act  relating  to  the  arrest  of  fugitives 
from  justice  from  other  states."  It  is  insisted  by  the  counsel 
for  plaintiff  in  error  that  this  act  is  repugnant  to  the  consti- 
tution of  the  United  States,  for  the  reason  that  it  is  legislation 
by  a  state  on  a  subject-matter  that  was  exclusively  delegated 
by  the  constitution  to  Congress,  and  that  Congress  had  legis- 
lated thereon.  We  find  no  support  of  this  proposition  in  the 
adjudged  cases,  except  a  dictum  of  Justice  Story  in  the  case  of 
Prigg  v.  Commonwealth  of  Pennsylvania,  16  Pet.  539.  The 
question  before  the  court  was  the  constitutionality  of  the  act 
of  the  state  of  Pennsylvania  of  March  26,  1826,  making  it  a 
penal  offense  to  'iarry  away  from  the  state  fugitive  slaves  by 
force  and  violence,  and  did  not  involve  the  question  under 
consideration  here,  and  all  reference  to  it  might  have  been 
omitted:  Spear  on  Extradition,  245.  The  constitution,  in  arti- 
cle 4,  section  2,  provides  that  "  a  person  charged  in  any  state 
with  treason,  felony,  or  other  crime,  who  shall  flee  from  jus- 
tice, and  be  found  in  another  state,  shall,  on  demand  of  the 
executive  authority  of  the  state  from  which  he  fled,  be  deliv- 
ered up  to  be  removed  to  the  state  having  jurisdiction  of  the 
crime."  Neither  the  act  of  Congress  nor  the  constitution  of 
the  United  States  relate  in  any  way  to  fugitives  from  justice 
from  one  state  to  another,  or  makes  any  provision  concerning 
them  until  a  demand  has  been  made  for  their  delivery.  "  The 
demand  is  evidently  the  initial  point  at  which  the  constitu- 
tion and  the  law  begin  to  operate,  and  prior  to  this  neither 
has  any  application  to  the  case":  Id.  While  legislation  by  a 
state  ngainst  the  constitution  and  the  law  of  Congress,  impair- 


176  Kurtz  v.  State.  [Florida, 

ing  the  full  operation  of  their  provisions,  would  be  nugatory^ 
yet  it  is  competent  for  a  state  legislature  to  enact  laws  on  the 
subject  at  a  stage  prior  to  that  which  the  constitution  and  fed- 
eral laws  have  designated  as  the  time  at  which  they  take 
cognizance  of  it,  provided  that  such  enactments  are  not  incon- 
sistent with  the  end  named  in  the  constitution.  Chief  Justice 
Shaw,  in  Commonwealth  v.  Tracy,  5  Met.  536,  in  considering 
the  constitutionality  of  a  similar  act  in  view  of  the  doctrine 
stated  in  Prigg  v.  Commonwealth,  supra,  used  the  following 
language:  "It  is  a  provision  obviously  not  repugnant  to  the 
constitution  and  laws  of  the  United  States,  nor  tending  to 
impair  the  rights  or  relax  the  duties  intended  to  be  secured 
by  them.  To  this  extent,  therefore,  the  court  are  of  opinion 
that  this  law  is  constitutional  and  valid, — one  that  the  legis- 
lature had  the  authority  to  pass":  See  also  Ex  parte  Rosen- 
hlat,  51  Cal.  285.  In  this  case  it  is  held  by  the  court  that 
Buch  legislation  is  based  on  principles  of  comity.  Mr.  Hurd, 
in  his  work  on  habeas  corpus,  page  636,  says  that  "  legislation 
of  this  character  when  in  no  sense  opposed  to  the  law  of  Con- 
gress may  be  vested  in  the  general  police  power  of  the  states": 
Commonwealth  v.  Hall,  75  Mass.  262;  9  Gray,  262;  Robinson 
V.  Flanders,  29  Ind.  10;  Ex  parte  Cubreth,  49  Cal.  436;  Ex 
parte  Ammons,  34  Ohio  St.  518. 

It  is  insisted  by  the  counsel  for  the  state  that  the  governor 
could  rightfully  withhold  the  papers  upon  which  he  based  his 
warrant  for  the  arrest  of  the  prisoner.  It  is  unnecessary  to 
consider  this  question,  as  the  record  shows  that  the  requisition 
from  the  governor  of  New  York,  and  the  accompanying  pa- 
pers, constituted  the  evidence  upon  which  he  acted,  and  were 
submitted  to  the  court:  Ex  parte  Reggell,  114  U.  S.  642. 

The  questions  the  record  presents  for  our  determination  are, 
— 1.  Is  Michael  Kurtz  charged  with  the  commission  of  treason, 
felony,  or  other  crime  in  the  state  of  New  York?  2.  Is  he  a 
fugitive  from  justice?  3.  Is  he  found  in  this  state?  4.  Has 
he  been  demanded  by  the  executive  of  the  state  of  New  York 
of  the  executive  authority  of  the  state  of  Florida?  5.  Has 
the  governor  of  the  state  of  Florida  issued  his  warrant  for  his 
arrest? 

Counsel  for  plaintifif  in  error  insists  that  a  copy  of  the 
charge  against  Kurtz  in  the  state  of  New  York  —  not  the 
original  —  should  have  been  presented  to  the  governor  of  this 
state  to  authorize  the  issue  of  his  warrant. 

The  statute  of  the  United  States,  section  5278  of  the  Revised 


Jan.  1886.]  Kurtz  v.  State.  177 

Statutes,  is  as  follows:  "Whenever  the  executive  authority  of 
any  state  or  territory  demands  any  person  as  a  fugitive  from 
justice,  of  the  executive  authority  of  any  state  or  territory  to 
which  such  person  has  fled,  and  produces  a  copy  of  an  indict- 
ment found,  or  an  affidavit  made  before  a  magistrate  of  any 
state  or  territory,"  etc.  It  will  be  seen  that  the  statute  is  not 
clear  as  to  whether  an  original  affidavit  or  copy  thereof  was 
intended  to  be  produced  to  the  governor  of  the  state  to  which 
the  alleged  fugitive  had  fled.  But  whichever  construction 
may  be  placed  on  the  statute  is  unimportant.  Either  the 
original  affidavit,  or  a  copy  of  an  affidavit  in  each  case,  cer- 
tified by  the  governor  of  the  state  from  which  the  fugitive 
had  fled  as  authentic,  would  be  sufficient  to  authorize  the  ac- 
tion of  the  governor  of  the  state  where  the  fugitive  was  found. 

Such  a  certification  would  place  its  genuineness  beyond 
dispute. 

The  fugitive  from  justice  cannot,  on  habeas  corpus,  impeach 
the  validity  of  the  affidavit  upon  which  the  requisition  was 
founded,  if  it  distinctly  charge  the  commission  of  an  oflense: 
Church  on  Habeas  Corpus,  sec.  476. 

The  governor  of  the  state  issuing  the  requisition  for  the 
fugitive  is  the  only  proper  judge  of  the  authenticity  of  the  affi- 
davit, and  when  the  requisition  certifies  that  the  affidavit  "  is 
duly  authenticated  according  to  the  laws  of  said  state,"  it  is 
sufficient:  In  re  Manchester,  5  Cal.  237;  Church  on  Habeas 
Corpus,  sec.  479. 

The  certification  does  not  make  the  charge  of  crime,  but 
simply  authenticates  the  copy  of  that  which  does  make  it,  and 
for  this  purpose  it  is  conclusive:  In  re  Manchester,  supra. 

Counsel  for  Kurtz  insists  also  that  the  act  of  Congress,  sec- 
tion 5278,  does  not  authorize  the  making  of  the  original  affi- 
davit before  an  assistant  police  magistrate  of  a  city.  We  are 
of  the  opinion  that  the  designation  of  "  magistrate  "  in  the  act 
includes  the  officer  before  whom  the  affidavit  was  made. 

Rapalye  and  Lawrence's  Law  Dictionary  defines  "  magis- 
trate" as  meaning  a  judicial  officer  having  a  summary  juris- 
diction in  matters  of  a  criminal  or  quasi  criminal  nature,  and 
is  commonly  used  in  the  United  States  to  designate  two  classes 
of  judicial  officers,  justices  of  the  peace  and  police  justices. 
An  American  consul  at  a  foreign  port  has  been  held  to  be  a 
"  magistrate  "  within  the  meaning  of  an  act  which  provides 
that  deeds  should  be  acknowledged  '*  before  a  justice  of  the 

▲m.  St.  Bir.,  Vol.  L  — 12 


178  Kurtz  v.  State.  [Florida, 

peace,  or  before  a  justice  of  the  peace  or  magistrate  in  some 
other  of  the  United  States  of  America,  or  in  any  other  state 
or  kingdom  in  which  the  grantor  may  reside":  Scanlan  v. 
Wright,  13  Pick.  523;  25  Am.  Dec.  344. 

Counsel  also  insists  that  the  former  discharges  of  Kurtz  by 
the  judge  below  had  the  force  and  effect  of  res  adjudicata,  and 
that  he  could  not  be  arrested  a  second  time  for  the  same 
charge. 

We  have  examined  the  numerous  authorities  submitted  by 
counsel,  as  well  as  others  referred  to  in  the  text-books,  and 
while  it  seems  that  in  those  states,  where  a  judgment  of  a 
court  in  a  habeas  corpus  proceeding  discharging  or  remanding 
to  custody  a  prisoner  is  final,  and  a  writ  of  error  is  allowed 
thereon,  that  the  principle  of  res  adjudicata  is  applicable,  yet 
in  none  of  these  cases  was  the  question  of  extradition  involved. 
No  case  brought  to  our  attention  has  decided  that  the  princi- 
ple applies  where  the  discharge  of  the  prisoner  was  from  the 
custody  of  an  oflBcer  holding  him  by  virtue  of  a  warrant  of  a 
resident  governor,  upon  the  requisition  of  the  governor  of  the 
state  from  which  he  had  fled.  They  are  all  cases  where  the 
parties  were  restrained  of  their  liberty  for  alleged  crime  by 
some  local  state  law,  or  seeking  discharge  from  the  army  or 
navy,  both  of  which  required  a  hearing  and  inquiry  into 
evidence,  and  a  judicial  determination  of  the  facts  and  the 
law. 

The  courts,  in  a  habeas  corpus  proceeding  of  this  kind, 
where  the  prisoner  is  arrested  for  extradition,  cannot  go  into 
a  trial  of  the  merits  of  the  cause.  The  proceeding  is  only  an 
initiatory  step  to  a  trial  in  another  state.  As  to  the  guilt  of 
the  prisoner,  they  are  not  allowed  to  inquire.  Their  judicial 
powers  are  limited  to  a  determination  on  the  suflBciency  of  the 
papers  and  the  identity  of  the  prisoner.  If  the  prisoner  is  dis- 
charged, it  will  not  absolve  him  from  being  rearrested  on  a 
new  warrant  issued  by  the  governor.  An  inspection  of  the 
record  shows  that  the  act  of  Congress  was  complied  with,  and 
we  are  of  the  opinion  that  the  judgment  should  be  afiirmed. 
It  is  ordered  that  Henry  D.  Holland,  the  sheriflf  of  Duval 
County,  is  hereby  authorized  and  commanded  to  execute  the 
warrant  of  arrest  issued  by  the  governor  of  the  state  of  Florida 
of  February  2,  1886,  upon  the  requisition  of  the  governor  of 
the  state  of  New  York,  for  the  surrender  and  delivery  of 
Michael  Kurtz,  and  to  deliver  the  said  Michael  Kurtz  to  George 
B.  Hazlehurst,  the  agent  of  the  state  of  New  York. 


Jan.  1886.]  Kuetz  v.  State.  179 

Warrant  Issited  by  Governor  to  arrest  fugitive  from  justice  is  consti- 
tutional: CommomoeaUh  v.  Hall,  69  Am.  Dec.  285.  Fugitive  from  justice 
from  any  of  United  States  may  be  arrested  and  detained  in  another  state:  In 
re  Fetter,  57  Id.  382.  The  civil  magistrate  should  commit  a  fugitive  from 
justice  for  a  reasonable  time,  so  as  to  enable  the  government  to  surrender  the 
fugitive:  In  re  Washburn,  8  Id.  548.  It  must  appear  upon  the  habeas  corpus 
that  the  ofiFense  was  committed  by  the  accused  within  the  limits  of  the  re- 
questing state;  otherwise  the  prisoner  will  be  discharged:  Ex  parte  Smith,  3 
McLean,  121.  Though  the  courts  have  no  power  to  control  the  executive 
discretion,  that  discretion  may  be  examined  into  where  the  liberty  of  the  sub- 
ject is  involved:  Matter  of  Manchester,  5  Cal.  237.  The  court,  on  habeas  cor- 
pus, cannot  inquire  into  the  offense  charged,  when  the  demand  under  the  act 
of  Congress  and  the  warrant  of  the  requesting  state  are  regular:  State  v.  Bu- 
tine,  4  Harr.  (Del.)  572;  State  v.  Schlemm,  4  Id.  577;  see  also  Nicliols  v.  Can- 
elius,  7  Ind.  fill;  Ex  parte  Pfitzer,  28  Id.  440;  In  re  Clark,  9  Wend.  212.  If 
the  requisition  is  made  with  all  due  formalities,  it  is  the  imperative  duty  of 
the  governor  of  the  state  to  which  the  fugitive  has  fled  to  comply,  without 
inquiring  whether  the  fugitive  has  committed  a  crime  according  to  the  laws 
of  the  state  to  which  he  fled:  Johnston  v.  Siley,  13  Ga.  97.  Constitutionality 
declared  of  statute  of  Indiana  directing  that  person  held  under  warrant  by 
governor  of  that  state  upon  requisition  of  another  state,  as  a  fugitive  from 
justice,  shall  be  taken  before  judge  of  the  circuit  or  common  pleas  court  for 
identification:  Robinson  v.  Flanders,  29  Ind.  10.  Where  fugitive  has  forfeited 
hia  bail,  and  again  becomes  a  fugitive,  the  governor  may  order  a  second  arrest 
and  delivery:  Matter  of  Hugltes,  PhilL  (N.  C.)  57. 

Peoceedinos  for  Arrest,  Detention,  and  Surrender  of  FuomvES  from 
Justice,  and  the  constitutional  and  statutory  provisions  in  relation  thereto, 
are  considered  in  the  note  to  Matter  qf  Fetter,  57  Am.  Dec.  389-400.  One 
arrested  as  a  fugitive  from  justice  on  a  warrant  issued  by  the  governor  of 
Alabama,  under  a  requisition  of  the  governor  of  Pennsylvania,  based  on  an 
indictment  found  in  the  latter  state  charging  him  with  obtaining  goods  by 
false  pretenses,  may  show,  on  Iiabeas  corpus,  that  he  was  not  in  Pennsylvania 
when  the  crime  is  alleged  to  have  been  committed,  nor  since,  and  that  he  has 
never  fled  from  Pennsylvania,  and  therefore  is  not  a  fugitive  from  justice: 
In  re  Mohr,  49  Am.  Rep.  63.  Whether  one  forcibly  and  illegally  brought 
into  one  of  the  United  States  from  a  foreign  country  may  be  taken  from  such 
•tate  on  a  requisition  from  another  state,  and  held  as  a  fugitive  from  justice: 
Kerr  v.  People,  51  Id.  706.  Whether  fugitive  from  justice  may  be  tried  for 
another  crime  after  he  has  been  acquitted  of  the  one,  under  the  charge  of 
which  he  was  arrested  and  brought  into  the  state:  Hackney  v.  West,  67  Id. 
101;  State  v.  Stewart,  60  Id.  388. 


180  Johnston  v.  Allen.  [Florida, 

Johnston  v.  Allen. 

[22  Flobida,  224.1 

Equttablb  Plea  in  Common-law  Action,  disclosing  only  facts  which  would 
constitute  a  defense  at  common  law,  will  be  stricken  out  on  motion. 

AcxTEPTOR  MAY  Pay  Non-negotlable  Drait  TO  Payeb  without  delivery  of 
the  draft,  if  acceptor  has  not  been  notified  of  transfer  of  the  draft,  and 
such  payment  is  a  good  defense  to  an  action  by  any  such  transferee 
against  the  acceptor. 

BuBDEN  OF  Prooe  OF  NoTicE  of  transfer  of  non-negotiable  draft  before  its 
payment  lies  on  the  plaintiff. 

Payment  of  Non-negotiablb  Dkatt  after  Notice  that  the  payee  had 
parted  with  the  possession  thereof,  either  by  transferring  it  absolutely 
or  as  collateral  security,  is  not  a  good  defense. 

One  Who  has  Delivered  Draft  as  Collateral  Seccritt  has  no  right 
subsequently  to  forbid  or  to  attach  any  conditions  to  its  payment. 

Consideration  of  Transfer  of  Draft  is  not  Proper  Subject  of  In- 
quiry in  an  action  by  the  transferee  against  the  acceptor. 

Compounding  Felony.  —  In  all  cases  where  parties  have  suffered  injury 
from  the  commission  of  a  felony,  they  may  compromise  or  settle  their 
private  damages  in  any  way  they  see  fit,  provided  they  do  not  includ* 
in  such  settlement  the  stifling  of  the  criminal  prosecution  for  such 
felony. 

Compounding  Felony.  —  The  assignment  of  a  draft  is  valid  and  enforceable 
against  its  acceptor,  though  such  assignment  may  have  been  made  in 
compound  a  felony. 

Action  by  holder  against  acceptor  of  non-negotiable  draft 
Judgment  for  plaihtiflFs. 

Alexander  C.  Abrams,  for  the  appellant. 

Hammond  and  Johnson,  for  the  appellees. 

By  Court,  McWhorter,  C.  J.  The  appellees,  R.  T.  P.  Allen 
and  Julia  A.  Allen,  brought  suit  in  the  circuit  court  of  Orange 
County  against  the  appellant  on  a  draft,  of  which  the  follow- 
ing is  a  copy: — 

"Orlando,  Aug.  12,  1881. 

"  Mr.  a.  D.  Johnston,  Jr.:  At  sight,  pay  to  John  M.  Pearo 
two  hundred  and  seventeen  dollars. 

"A.  D.  Johnston,  Sr." 

"Accepted  Sept.  1,  1881. 

"A.  D.  Johnston,  Jr." 

The  defendant  filed  a  plea  on  equitable  grounds,  setting 
forth  that  the  plaintiffs  did  not  become  possessed  of  said  draft 
in  the  due  course  of  trade,  or  for  a  valuable  or  legal  considera- 
tion; that  one  Judson  Sharpe,  in  the  year  1881,  was  in  the 
employ  of  plaintiffs  on  board  the  steamer  Mary  Bell,  plying 
on  the  Kissimmee  River,  and  was  charged  by  plaintiffs  with 


Jan.  1886.]  Johnston  v.  Allen.  181 

being  a  defaulter  in  a  large  sum  of  money,  and  criminal  pro- 
ceedings were  instituted  or  threatened  against  the  said  Sharpe, 
for  the  alleged  embezzlement.  Whereupon  the  parties  agreed 
to  compound  and  compromise  the  said  felony,  and  as  a  part 
of  said  compounding  the  said  felony  said  Pearce  deposited 
with  the  plaintiffs,  among  other  things,  the  said  draft,  as  col- 
lateral security  to  secure  the  plaintiffs  whatever  sum  might 
be  due  to  them  by  the  said  Judson  Sharpe;  that  said  Pearce 
did  not  receive  any  consideration  for  the  same;  that  said 
Pearce  afterwards  informed  him  that  the  said  draft  was  de- 
posited as  collateral,  and  forbade  his  paying  the  same,  unless 
it  should  be  presented  properly  indorsed  by  him. 

On  motion  of  plaintiffs'  counsel,  this  plea  was  stricken  by 
the  court,  and  appellant  assigns  such  action  of  the  court  as 
error. 

There  is  no  reason  why  this  defense  should  have  been  set 
up  in  a  plea  on  equitable  grounds.  There  is  nothing  in  it  that 
would  give  a  court  of  equity  jurisdiction — if  a  bill  had  been 
filed  for  relief. 

Whatever  defense  there  was  in  it  was  available  to  the  de- 
fendant by  common-law  plea.  This  court,  in  the  case  of  Spratt 
V.  Price,  18  Fla.  289,  decided  that  when  an  equitable  plea  in 
a  common-law  action  consisted  of  matter  which  was  a  de- 
fense at  law,  that  the  court  of  its  own  motion  should  strike 
it  out. 

The  appellant  also  assigns  as  error  the  sustaining  of  plain- 
tiffs' demurrer  to  his  plea  of  payment.  We  think  this  was 
erroneous. 

As  the  case  must  be  reversed  on  this  point,  it  is  not  im- 
proper that  we  should  give  our  views  for  the  guidance  of  the 
court  in  another  trial  of  it.  The  draft  was  not  a  negotiable 
instrument.  By  the  authorities  the  acceptor  of  such  a  paper 
bad  a  legal  right  to  pay  the  amount  called  for  in  it  to  the 
payee  without  demanding  a  delivery  up  to  him  of  the  draft, 
provided  he  had  no  notice  that  the  payee  had  transferred  the 
draft  to  a  third  person  before  demanding  payment:  Hart  v. 
Freeman,  42  Ala.  567;  Story  on  Promissory  Notes,  sec.  106. 

Such  a  payment  would  be  a  valid  defense  against  the  note, 
should  it  afterwards  appear,  and  suit  be  brought  on  it  against 
the  maker  by  another  holder.  The  question  as  to  whether 
Johnston  had  notice  of  the  transfer  by  Pearce  to  plaintiffs  of 
the  draft  before  ho  claims  to  have  paid  it,  is  a  question  of  fact 
to  be  decided  by  a  jury.     The  burden  of  proof  of  this  issue 


182  Johnston  v.  Allen.  [Florida, 

rests  on  the  plaintiffs, — if  the  defendant  proves  the  payment, 
— to  show  that  the  defendant  had  notice  of  the  transfer  be- 
fore the  payment  was  made.  The  pleadings  should  be  formed 
BO  as  to  bring  the  issue  of  notice  vel  non  before  the  jury. 

If  Johnston  had  notice  before  or  at  the  time  of  his  alleged 
payment  of  the  draft  to  Pearce  that  Pearce  had  parted  with 
the  possession  of  it,  either  by  transferring  it  absolutely,  or  by 
giving  it  to  Sharpe  to  be  used  by  him  as  collateral,  his  pay- 
ment of  it  with  this  knowledge  would  not  be  a  good  defense, 
either  as  to  an  absolute  transferee  from  Pearce,  or  the  person 
who  held  it  as  collateral  from  Sharpe.  The  defendant  says  in 
his  equitable  plea  that  Pearce  informed  him  that  the  draft 
was  deposited  as  collateral,  and  forbade  his  paying  it,  unless 
it  should  be  presented  properly  indorsed  by  him.  If  this  be 
true,  as  to  which  we  say  nothing,  it  was  a  sufficient  notice  to 
him  to  deprive  him  of  the  right  to  pay  the  draft  to  Pearce, 
and  Pearce,  having  given  the  draft  to  Sharpe  to  be  used  as  col- 
lateral, could  not  afterwards  prevent  the  payment  of  it  to 
Sharpe's  transferee  by  forbidding  the  acceptor  to  pay  it  until 
he  should  indorse  it.  It  would  permit  him,  after  agreeing  to 
allow  Sharpe  to  use  the  draft  as  collateral,  and  delivering  it 
to  him  for  that  purpose,  and  after  Sharpe  had  passed  it  to 
another  person  in  pursuance  of  such  authority,  to  attach  a  con- 
dition to  it,  at  the  instance  of  his  own  will  alone,  which  would 
nullify  the  whole  transaction,  and  operate  as  a  fraud  on  the 
transferee  from  Sharpe. 

The  third  assignment  of  error  is,  that  the  court  refused  to 
permit  evidence  to  go  to  the  jury  as  to  whether  Pearce  was  in- 
debted to  Sharpe,  or  of  the  nature  of  the  indebtedness  from 
Sharpe  to  the  plaintiffs,  or  whether  Sharpe  was  indebted  to 
the  plaintiffs  at  all.  We  cannot  see  the  materiality  of  this 
evidence.  It  was  a  matter  in  which  the  acceptor  was  in  no 
wise  concerned.  His  duty  and  liability  were  alike  limited  to 
the  payment  of  the  draft  which,  by  his  acceptance,  he  agreed 
to  pay  to  the  holder;  for  what  indebtedness  it  was  transferred, 
its  amount,  or  whether  there  was  any  indebtedness  existing 
from  the  payee,  Pearce,  to  his  transferee,  Sharpe,  or  from 
Sharpe  to  the  plaintiffs,  has  no  bearing  or  influence  on  his 
rights  or  liability. 

Appellant  also  assigns  as  error  the  refusal  of  the  court  to 
give  the  fourth  and  fifth  instructions  asked.  These  instruc- 
tions are  as  follows:  "4.  That  the  draft  sued  on  is  a  non- 
negotiable  instrument,  and  the  defendant  is  entitled  to  defend 


Jan.  1886.]  Johnston  v.  Allen.  183 

against  the  plaintiffs  (not  the  payee)  in  the  same  manner  and 
on  the  same  ground  that  he  could  against  the  payee,  Pearce. 
That  if  they  believe  from  the  testimony  that  Johnston  has  paid 
the  amount  of  the  draft  to  Pearce  in  payment  of  the  draft, 
they  must  find  for  the  defendant."  "  5.  That  even  though 
Allen  received  the  draft  for  a  valuable  consideration,  the  draft 
being  a  non-negotiable  instrument,  he  took  it  subject  to  all 
the  equities  existing  between  Pearce  and  Johnston.  That  if, 
by  reason  of  payment  or  offset,  Pearce  could  not  recover  by 
suit  against  Johnston,  neither  can  Allen  recover  from  Johnston. 
Hence,  if  the  jury  believes  from  the  testimony  that  Johnston 
has  paid  the  draft  to  Pearce,  Allen  cannot  recover,  and  they 
must  find  for  the  defendant." 

Both  of  these  instructions  were  properly  refused.  They  each 
asked  the  court  to  instruct  the  jury  that  they  must  find  for 
the  defendant,  if  Johnston,  the  acceptor,  had  paid  the  draft  to 
Pearce.  They  put  no  limit  to  the  time  within  which  Pearce 
had  a  right  to  demand  payment  from  Johnston,  and  during 
which  it  was  the  duty  of  Johnston  to  pay  Pearce. 

This  was  as  long  as  Pearce  was  the  owner  of  the  draft. 
After  that  time,  and  when  Pearce  had  transferred  the  draft  to 
Sharpe,  and  Sharpe  had  transferred  it  to  plaintiffs,  if  Johnston 
had  notice  of  such  transfer,  and  paid  it  to  Pearce,  it  was  un- 
authorized, and  was  not  a  payment,  so  far  as  the  plaintiffs  are 
concerned. 

The  vital  question  is.  Did  Johnston,  at  the  time  he  paid  the 
draft  to  Pearce,  have  notice  that  Pearce  had  transferred  the 
draft  to  another  person?  Yet  these  instructions  ignore  this 
question,  and  ask  the  court  to  charge  that,  because  the  paper 
was  non-negotiable,  that  the  acceptor  had  a  right  to  pay  it  to 
the  payee,  regardless  of  the  question  as  to  whether  he  knew 
that  the  payee  had  transferred  it  or  not.  Supposing  that  the 
facts  set  up  in  the  equitable  plea  will  be  again  brought  before 
the  circuit  court  in  some  other  form,  it  is  not  improper  that 
we  should  state  our  views  as  to  their  validity  as  a  defense  to 
the  action. 

The  law  of  contracts  relating  to  the  compounding  a  felony 
is  laid  down  very  clearly.  "  In  all  cases  of  offenses  which 
involve  damages  to  an  injured  party,  for  which  he  may  main- 
tain an  action,  it  is  competent  for  him,  notwithstanding  they 
are  also  of  a  public  nature,  to  compromise  or  settle  his  private 
damage  any  way  he  may  think  fit;  but  that  an  agreement  for 
suppressing  evidence,  or  for  stifling  or  compounding  a  crimi- 


184  Johnston  r.  Allen.  [Florida, 

nal  prosecution  for  a  felony,  is  void":  2  Chitty  on  Contracts, 
991.  The  mere  fact  that  Sharpe  was  under  arrest  for  embez- 
zlement from  the  plaintiffs  would  not  vitiate  or  taint  any 
agreement  he  made  with  the  plaintiffs  for  the  payment  of 
whatever  sum  he  might  be  indebted  to  them,  unless  in  consid- 
eration of  such  agreement  the  plaintiffs  were  to  abandon  or 
suppress  the  prosecution  against  him. 

But  if  such  an  agreement  was  made  by  plaintiffs  and 
Sharpe,  we  cannot  see  how  it  is  an  available  defense  to  the 
defendant.  There  is  no  contest  as  to  the  validity  and  binding 
force  on  him  of  the  draft  in  its  inception.  He  was  not  privy 
to  the  agreement  between  plaintiffs  and  Sharpe.  His  inter- 
ests are  not  affected  by  it  in  any  way:  Mack  v.  Clark,  1  Met. 
423. 

Judgment  reversed,  and  new  trial  granted. 


Defense  that  Note  was  Given  in  Consideration  of  Compoitndino 
Felont,  what  evidence  incompetent  to  sustain:  Bigelow  v.  Woodioard,  77 
An:.  Dec.  389.  Allegation  of  fraud  does  not  cast  upon  holder  the  burden 
of  proving  himself  bona  Jide  holder:  Clapp  v.  County  of  Cedar,  68  Id.  679. 
Burden  of  proof  in  action  by  indorsee  against  maker,  who  pleads  that  there 
was  no  consideration  for  the  note,  and  that  the  payee  fraudulently  trans- 
ferred it,  is  upon  the  plaintiflF  to  show  that  he  received  the  note  before  due 
for  a  valuable  consideration;  whereupon  the  burden  shifts  back  to  the  de- 
fendant to  show  the  plaintiflf's  knowledge  of  the  want  of  consideration  and 
fraud:  Davis  v.  BartleU,  80  Id.  375. 

The  reasoiung  which  permitted  the  payment  of  non-negotiable  paper  with- 
out requiring  its  delivery  was,  that  any  action  thereon  must  be  brought  in 
the  name  of  the  payee  or  his  personal  representative,  and,  consequently,  that 
the  defense  of  payment  would  be  a  valid  and  competent  one.  Now  that 
non-negotiable  paper  is  assignable,  and  suit  may  be  brought  on  it  in  the 
name  of  the  assignee,  the  argument  permitting  payment  of  it  without  obtain- 
ing its  surrender  appears  to  fall  to  the  ground,  and  it  would  seem  that,  in 
principle,  both  classes  of  paper  should  be  placed  in  the  same  category. 

The  authorities  cited  by  Mr.  Story,  in  his  work  on  promissory  notes,  sec- 
tion 106,  in  support  of  the  validity  of  the  payment,  are  all  English  cases, 
decided  when  choses  in  action  were  not  assignable  in  that  country,  or  Ameri- 
can cases  in  which  the  plaintiff  was  the  original  party  to  the  note,  or  the 
note  had  been  lost  or  destroyed.  At  the  reference  cited,  Mr.  Story  says: 
"Another  right,  in  a  practical  view  quite  as  important  to  be  understood,  is, 
whether  the  maker  of  a  note  has  a  right  to  insist,  when  he  is  called  upon  for 
payment  at  maturity,  that  the  note  itself  should  be  produced  and  delivered 
up  to  him:  Chitty  on  Bills,  8th  ed.,  c.  9,  p.  391.  When  the  note  is  not 
negotiable,  it  may  not,  strictly  speaking,  be  deemed  a  matter  of  much  conse- 
quence; since  whoever  claims  the  note  must  claim  it  in  the  name  of  the 
payee  or  his  personal  representative,  and  hence  it  may  be  supposed  that  the 
defense  of  payment  would  always  be  a  valid  and  competent  defense.  But 
we  are  to  consider  that  the  proofs  of  the  payment  may  disappear  by  lapse  of 
time It  is  far,  therefore,  from  being,  even  here,  in  many  cases,  a 


Jan.  1886.]  Beblack  v.  Halle.  185 

matter  of  indifference;  and  there  would  be  no  hardship  in  a  role  of  law 
which  should  require,  even  when  the  note  is  not  negotiable,  that  it  should 
•either  be  given  up,  or  a  formal  receipt  given  of  its  being  paid,  or  security 
given  as  an  indemnity  against  a  second  payment  to  be  required  from  the 
maker.  Such,  however,  is  not  understood  to  be  the  positive  requirement  of 
our  law,  when  the  payment  of  non-negotiable  paper  is  demanded." 

In  the  case  of  Uari  v.  Freeman,  42  Ala.  567,  upon  which  the  decision  on 
this  point  in  the  principal  case  is  based,  the  proposition  is  laid  down  without 
any  qualification,  and  without  citation  of  authority,  the  court  below  having 
held  the  other  way. 


Beelack  V,  Halle. 

r22  Flobida,  236.1 

Mobtgaoob's  Legal  Title  is  not  Divested  by  failure  to  comply  with  the 
conditions  of  the  mortgage,  nor  by  surrender  of  possession  to  the  mort- 
gagee. 

Obantee  07  MoBTGAGOB  IS  Necessabt  Fabty  to  foreclosure  of  a  mort- 
gage. A  decree  to  which  he  is  not  a  party  is  inoperative  as  against 
him,  and  a  purchaser  thereunder  cannot  recover  in  ejectment  against 
such  grantee  or  his  assigns. 

Obdinabt  Mobtoagb  is  NOT  Evidence  or  Bight  ov  Possession  in  th« 
mortgagee. 

Ejectment  by  Halle  and  wife  against  Berlack.  Both  par- 
ties claimed  under  Loudrick  Warrock  and  wife,  who,  on  March 
27, 1873,  mortgaged  the  premises  in  controversy  to  C.  B.  Bene- 
dict, and  on  March  20,  1876,  conveyed  them  to  A.  J.  Myers, 
by  a  conveyance  duly  recorded  on  the  29th  of  the  same  month. 
The  latter  conveyed  to  M.  C.  Jordan,  in  August,  1884,  under 
whom  the  defendants  had  possession  as  his  tenants.  The 
mortgage  having  been  assigned  to  H.  S.  Sayre,  he  in  Septem- 
ber, 1879,  brought  suit  to  foreclose  it,  making  only  the  original 
mortgagors  parties  defendant.  A  decree  of  foreclosure  was 
entered,  and  a  sale  and  conveyance  thereunder  made  to  Sayre, 
who  subsequently  conveyed  to  Mrs.  Halle.  There  was  testi- 
mony on  the  part  of  plaintiffs  to  the  efifect  that  the  mortgagors, 
fitill  being  in  possession  when  the  foreclosure  proceedings  were 
instituted,  surrendered  such  possession  to  S.  G.  Spearing,  as 
agent  of  Sayre.  The  testimony  of  Jordan  was  to  the  effect  that 
the  property  was  vacant  and  unoccupied  at  the  date  of  its  con- 
veyance to  him,  and  that  he  thereupon  took  possession,  made 
some  improvements,  and  leased  to  defendants  and  others. 
The  court  instructed  the  jury  to  the  eflect  that  the  convey- 
ance of  the  mortgagors  to  Myers  constituted  no  impediment 


186  Berlack  v.  Halle.  [Florida, 

to  plaintiffs'   recovery.     Verdict   for  plaintiffs.     Defendants 
moved  for  a  new  trial,  which  was  denied. 

M.  C.  Jordan^  and  A.  W.  Cochrell  and  /Son,  for  the  appellant. 
Randall,  Walker,  and  Foster,  for  the  appellees. 

By  Court,  Raney,  J.  The  first  question  to  be  disposed  of  is 
as  to  the  introduction  of  the  decree  of  foreclosure  in  support 
of  the  master's  deed,  in  the  absence  of  such  prior  proceedings 
as  showed  jurisdiction.  In  so  far  as  jurisdiction  of  the  parties 
to  the  suit  in  which  this  decree  was  rendered  is  concerned,  the 
objection  was  cured  by  the  defendant,  Berlack,  having  intro- 
duced the  bill  and  other  proceedings  in  the  cause.  The  effect 
of  this  decree  and  the  other  proceedings  in  the  suit,  including 
the  sale,  upon  the  land,  and  the  defendant's  rights  therein,  are 
to  be  considered. 

The  subpoena  in  the  foreclosure  suit  was  issued  on  the 
twenty-fifth  day  of  September,  1879,  and  was  served  on  the 
next  day.  At  this  time,  the  legal  title  was,  and  had  been,  in 
Myers  for  more  than  three  years,  by  deed  from  Warrock  and 
wife,  made  March  20,  1876,  and  recorded  in  the  clerk's  oflBce 
of  Duval  County  nine  days  after  its  execution.  It  is  true  that 
there  had  been  a  failure  to  comply  with  the  conditions  of  the 
mortgage  prior  to  the  conveyance  to  Myers;  but  this  did  not 
vest  the  legal  title  in  Benedict,  the  mortgagee,  nor  in  his 
assignee,  Sayre;  it  remained  in  Warrock  until  he  conveyed  ii 
to  Myers.  The  legal  title  is  divested  only  by  forfeiture  of  the 
conditions,  and  a  sale  under  the  decree  of  the  court.  The 
mortgagor  remains  until  a  sale,  seised  in  fee:  McMahon  v. 
Russell,  17  Fla.  698;  Pasco  v.  Gamble,  15  Id.  562,  Cases 
which  maintain,  as  Frische  v.  Kramer's  Lessee,  16  Ohio,  138, 
47  Am.  Dec,  368,  and  others,  that  as  between  mortgagor  and 
mortgagee,  and  persons  holding  under  either  or  both  after  con- 
dition broken,  the  legal  estate  becomes  absolute  in  the  mort- 
gagee, subject,  however,  to  be  redeemed  by  payment  of  the 
debt,  are  not  consistent  with  the  former  decisions  of  this  court, 
or  with  our  own  views  of  the  statute. 

The  owner  of  the  legal  title  is  a  necessary  party  to  a  suit  for 
foreclosure  of  a  mortgage:  Jones  on  Mortgages,  sec.  1394;  Bar- 
bour on  Parties,  502;  Hall  v.  Nelson,  23  Barb.  88;  Reed  v.  Mar- 
ble, 10  Paige,  409.  Myers  was  not  a  party  to  the  foreclosure 
suit,  so  the  title  remained  in  him,  unaffected  by  it  {Reed  v. 
Marble,  supra;  Watson  v.  Spence,  20  Wend.  260),  and  is  now  in 


Jan.  1886.]  Berlack  v.  Halle.  187 

Jordan.  The  decree  did  not  change  Sayre's  status  to  the  land. 
Warrock  and  wife  having  conveyed,  they  had  no  longer  any 
right  to  redeem  the  land  from  mortgage,  as  holders  of  the  legal 
title,  whatever  Warrock's  duty  to  pay  the  debt  secured  by  the 
mortgage  was.  The  legal  title  has  never  been  in  Benedict  or 
Sayre.  The  mortgage  did  not  put  it  in  the  former;  nor  did 
the  alleged  foreclosure  suit,  decree,  and  sale  put  it  in  Sayre, 
because  the  legal  title  was  not  before  the  court;  and  conse- 
quently it  was  not  conveyed  by  the  deed  to  Mrs.  Halle.  She 
has  no  better  status  than  that  of  an  assignee  or  holder  of  the 
mortgage,  with,  to  say  the  most,  an  accounting  decree  against 
Warrock,  whatever  such  decree  may  be  worth  as  such  an  ac- 
counting as  against  the  holder  of  the  legal  title. 

There  is  nothing  to  show  that  Warrock,  who  continued  in 
possession  after  this  conveyance  to  Myers,  held  adversely  to 
Myers.  When  he  gave  possession  to  Sayre,  he  did  not  have 
the  legal  title, — it  was  in  Myers;  he  must  be  presumed  to 
have  held  under  Myers's  title,  and  not  adversely:  Bedell  v. 
Shaw,  59  N.  Y.  46.  Had  he  then  held  the  legal  title,  we  do 
not  think  that  a  mere  surrender  of  possession  to  Sayre  would 
have  passed  such  title  to  the  latter:  Trimm  v.  Marsh,  54  Id. 
599;  13  Am.  Rep.  623. 

It  is  not  necessary  for  us  to  question  the  doctrine  of  those 
cases  which  hold  that  a  mortgagor  or  his  assigns  cannot  re- 
cover in  ejectment  against  a  mortgagee  lawfully  in  possession. 
There  is  nothing  to  show  that  Sayre  was  ever  lawfully  in  pos- 
session as  against  Myers,  or  that  Warrock,  who  prior  to  put- 
ting Sayre  in  possession  had  conveyed  all  his  interest  in  the 
land  to  Myers,  was  authorized  by  the  latter  to  deliver  posses- 
sion for  him  to  Sayre.  Had  Warrock  delivered  possession 
before  making  the  deed  to  Myers,  the  case  of  Gillet  v.  Eaton, 
6  Wis.  33,  would  be  more  in  point;  yet  there  would  still  be  the 
difference  that  in  it,  as  in  Tallman  v.  Ely,  6  Id.  244,  the  mort- 
gagee was  in  possession  defending,  while  here  he  is  suing  an 
ejectment  for  possession.  Sayre's  possession,  as  against 
Myers,  is  no  better  than  Warrock's,  and  there  is  no  basis  in 
the  record  for  the  position  that  Myers  could  not  recover 
against  Warrock,  were  he  in  possession.  The  lawful  posses- 
Bion,  as  against  the  mortgagee,  is  with  the  holder  of  the  legal 
title,  under  our  statute,  at  least  until  it  be  shown  that  ho  has 
parted  with  it  of  his  own  volition,  or  it  has  been  taken  from  him 
by  judicial  proceedings  to  which  he  is  a  party.  In  Tallman  v. 
Ely,  supra,  the  mortgagee  was  regarded  as  lawfully  in  posses- 


188  Berlack  v.  Halle.  [Florida, 

eion,  and  the  doctrine  oiFrische  v.  Kramer^s  Lessee^  16  Ohio,  138, 
47  Am.  Dec.  368,  is  approved.  In  Howell  v.  Leavitt,  95  N.  Y. 
617,  it  is  said  that  "  in  most  of  the  cases  which  have  upheld 
the  right  of  the  mortgagee  to  possession,  his  possession  was 
obtained  with  the  consent,  express  or  implied,  of  the  owner  of 
the  land,  although  in  some  of  them  the  mode  of  acquiring  pos- 
session did  not  distinctly  appear,  and  in  many  the  rule  is 
stated  quite  broadly,  and  with  little  of  restriction  or  limita- 
tion." Assuming  that  the  right  of  retention  of  possession 
against  an  assignee  of  the  mortgagor  will  be  recognized  under 
our  statute,  we  think  such  right  of  possession  must  emanate 
from  the  mortgagor  while  he  is  the  owner  of  the  legal  title,  or 
in  other  words,  prior  to  his  conveyance  of  it  to  his  grantee. 
The  burden  is  upon  the  mortgagee  to  show  that  he  has  the 
right  to  possession:  Goss  v.  Welwood,  90  N.  Y.  638;  Bedell  v. 
Shaw,  59  Id.  46.  And  under  our  statute,  an  ordinary  mort- 
gage is  not  itself  evidence  of  any  such  right:  Pasco  v.  GamhUy 
McMahon  v.  Russell,  supra. 

As  the  legal  title  was  not  afifected  by  the  foreclosure  pro- 
ceedings, or  the  deed  under  them,  we  do  not  think  such  pro- 
ceedings or  deed  were  of  any  eflFect  to  show  a  legal  title  in 
Sayre,  as  against  Myers  or  Jordan,  or  any  one  claiming  under 
them:  Reed  v.  Marble,  10  Paige,  409. 

Upon  the  rule  that  in  ejectment  the  plaintiff  must  recover 
upon  the  strength  of  his  title,  Mrs.  Halle  has  no  standing,  for 
she  has  not  connected  herself  with  the  legal  title,  except  to 
show  a  specific  lien  upon  it  which  is  not  the  basis  of  a  recov- 
ery in  this  action:  Pasco  v.  Gamble,  supra;  nor  has  she  shown 
a  lawful  possession  emanating  from  the  holder  of  such  title. 

The  testimony  shows  no  act  of  possession  by  Sayre  subse- 
quent to  April,  1883,  when  Spearing  says  he  turned  over  the 
possession  to  Sayre.  Jordan,  without  warrant  from  another, 
took  possession,  and  he  built  up  the  fences  about  June  14, 
1884.  How  long  before  this  he  had  been  in  possession,  he 
does  not  say.  He  says  the  property  was  vacant  and  unoccu- 
pied when  he  took  possession.  He  allowed  Hernandez  to 
occupy  it,  and  the  defendant  was  his  tenant  at  the  execution 
and  delivery  of  the  deed  by  Myers,  and  of  the  institution  of 
the  action  of  ejectment;  that  he,  Jordan,  was  in  actual  posses- 
sion, and  the  deed  from  Myers  covers  the  property. 

The  testimony  shows  that  the  defendant  was  in  possession 
under  Jordan,  and  Jordan,  at  the  commencement  of  the  action, 
held  the  legal  title,  and  such  being  the  case,  under  the  facts 


Jan.  1886.]  Berlack  v.  Halle.  189 

as  reviewed  above,  we  think  his  possession  is  protected  by 
title  from  Warrock,  through  Myers,  against  the  plaintififs,  who 
have  no  legal  title,  and  no  authorized  possession  as  against 
Jordan  as  the  holder  of  the  legal  title  from  Myers. 

The  circuit  judge  erred  in  the  charge  he  gave  to  the  jury, 
and  in  refusing  to  give  the  instructions  offered  by  the  defend- 
ant. The  former  is  in  conflict  with  the  views  we  have  ex- 
pressed, and  the  latter  are  consistent  with  such  views,  as  will 
be  seen  by  considering  them. 

The  judgment  is  reversed,  and  a  new  trial  granted. 


Where  No  Powek  of  Sale  is  Embraced  ts  Mortgage,  the  mortgagor 
or  his  grantee  cannot,  under  any  circumstances,  in  California,  be  cut  off 
from  his  estate,  except  by  sale  in  pursuance  of  a  judicial  decree:  Ooodenow 
V.  Evxr,  76  Am.  Dec.  540. 

All  Persons  are  Proper  Parties  to  Suit  to  Foreclose  Mortgagb 
■who  are  beneficially  interested,  either  in  the  estate  mortgaged  or  the  de- 
mand secured.  This  rule,  generally,  will  embrace  only  the  mortgagor  and 
the  mortgagee,  and  those  who  have  acquired  rights  or  interests  nnder  them: 
San  Francisco  v.  LawUm,  79  Am.  Dec.  187. 

Foreclosure  and  Sale  of  Mortgaged  Premises  do  not  Affect  Right 
OF  Redemption  of  the  grantee  of  the  mortgagor,  who  was  not  made  a  party 
to  the  proceedings:  Cldlds  v.  Clulds,  75  Am.  Dec.  512. 

Where  Grantee  of  Purchaser  of  Land  at  Foreclosure  Sale  Brings 
Suit  against  a  grantee  of  the  mortgagor,  who  had  not  been  made  a  party  to 
the  suit  for  foreclosure,  to  quiet  title  to  the  land,  relying  upon  twelve  years' 
adverse  possession,  taken  and  held  under  the  sheriff 's  deed,  the  suit  cannot 
be  regarded  as  a  suit  for  the  foreclosure  of  the  mortgage:  Arlington  v.  Lis- 
com,  94  Am.  Dec.  722;  Anson  v.  Anson,  89  Id.  514. 

Subsequent  Purchasers  and  Encumbrancers,  whether  necessary  or 
proper  parties  in  foreclosure  suits:  Street  v.  Beal,  85  Am.  Dec.  504.  In 
many  of  the  states  the  effect  of  a  mortgage  as  a  conveyance  of  the  legal  title 
has  been  destroyed  by  enactments,  which  convert  it  into  a  mere  lien  upon 
the  property.  Tlie  obvious  consequence  of  the  retention  of  the  legal  title 
by  the  mortgagor  is  his  ability  to  convey  such  title  at  his  pleasure.  It  is 
true  that  the  title  is  still  subject  to  the  mortgage  lien.  But  when  the  lien 
is  to  be  made  effective  by  proceedings  to  appropriate  the  title  to  its  satisfao- 
tion,  there  can  be  no  question  that  such  title  can  be  reached  only  by  some 
proceeding  directed  against  the  party  by  whom  it  is  held.  It  is  incompre- 
hensible that  any  person  should  have  conceived  the  idea  that  the  title  could 
bo  divested  under  foreclosure  proceedings  against  the  mortgagor,  commenced 
»t  a  time  when  he  retained  no  interest  in  the  property,  and  the  proper  evi- 
dence of  his  transfer  was  upon  the  records  of  the  county  in  which  the  land 
was  sitaate.  Yet,  at  least  in  some  of  the  states,  the  early  foreclosure  pro- 
oaedingB  very  generally  ignored  transfers  made  subsequent  to  the  mortgage 
and  prior  to  the  institution  of  such  proceedings.  It  is  clear  that  an  excca- 
tion  or  judicial  sale  can  have  no  greater  operation  than  could  a  conveyance 
of  the  property,  executed  by  all  the  parties,  at  the  commencement  of  the 
action  or  proceeding.  What  they  cannot  do  voluntarily,  they  cannot  bo 
■UMie  to  do  by  compulsion.     The  conveyance,  though  executed  by  an  officer 


190  Berlack  v.  Halle.  [Florida, 

of  the  law  or  of  the  court,  is,  nevertheless,  in  legal  contemplation,  their 
conveyance,  and  theirs  alone.  Hence  it  cannot  divest  the  estate  of  their 
grantees  by  grants  duly  executed  and  recorded  prior  to  the  pendency  of  the 
suit:  Oooderuno  v.  Euxr,  76  Am.  Dec.  540;  Bogga  v.  Hargrove,  76  Id.  561; 
San  Francisco  v.  Lawton,  79  Id.  187. 

If,  however,  under  the  law  of  the  state,  the  mortgagee  is  at  the  time  of  the 
foreclosure  sale  vested  with  the  legal  title,  it  will  pass  to  the  purchaser,  leav- 
ing grantees  of  the  mortgagor,  who  are  not  parties  to  the  suit,  vested,  as  be- 
fore the  foreclosure  and  sale,  with  an  equity  of  redemption,  to  the  assertion 
of  which  the  foreclosure  constitutes  no  impediment:  Frisckc  v.  Kramer's 
Lessee,  47  Am.  Dec.  368;  Childs  v.  Cldlds,  10  Ohio  St.  339;  75  Am.  Dec.  512; 
Stewart  v.  Johnson,  30  Ohio  St.  30.  As  against  a  junior  grantee  or  encum- 
brancer under  the  mortgagor,  not  made  a  party  to  the  suit,  the  utmost  eCFect 
which  can  be  accorded  to  a  foreclosure  and  sale  is  to  treat  it  as  an  assign- 
ment to  the  purchaser  of  the  mortgage  debt,  and  of  the  right  of  the  mort- 
gagor to  satisfy  it  out  of  the  mortgaged  premises,  in  case  the  latter  has  not 
by  the  law  of  the  state  the  legal  title.  If,  however,  he  holds  the  legal  title, 
that  also  vests  in  the  purchaser,  from  whom  it  may  be  redeemed  by  any  per- 
son not  a  party  to  the  suit,  claiming  under  the  mortgagor,  whether  as  pur- 
chaser or  as  encumbrancer:  Anson  v.  Anson,  20  Iowa,  55;  89  Am.  Dec.  514; 
American  Button  Hole  Co.  v.  Burlington  M.  L.  Ass'n,  61  Iowa,  465;  Spurgin  v. 
Adamson,  62  Id.  668. 

"Under  the  old  theory  of  mortgages,  when  they  were  treated  as  convey- 
ances, the  property  passed  to  the  mortgagee  upon  condition  that  it  should 
revert  to  the  mortgagor  if  the  obligation,  for  the  security  of  which  it  was 
executed,  was  performed;  otherwise  that  the  mortgagee's  interest  should  be- 
come absolute.  The  mortgage  was  in  terms  the  conveyance  of  a  conditional 
estate,  which  became  absolute  upon  breach  of  the  condition.  But  courts  of 
equity  at  an  early  day,  looking  beyond  the  terms  of  the  instrument  to  the 
real  character  of  the  transaction,  as  one  of  security  and  not  of  purchase, 
interfered  and  gave  to  the  mortgagor  a  right  to  redeem  the  property  from 
the  forfeiture  following  the  breach,  upon  discharge  of  the  debt  secured,  or 
other  obligation,  within  a  reasonable  period.  With  this  equitable  right  of 
redemption  in  the  mortgagor,  a  corresponding  right  in  the  mortgagee  to  insist 
upon  the  discharge  of  the  debt,  or  other  obligation  secured,  within  a  reason- 
able time,  or  a  relinquishment  of  the  right  to  redeem,  was  recognized  by 
those  courts;  the  mortgagee  could  therefore  bring  his  suit  to  foreclose  the 
equity  of  redemption,  unless  the  debt  or  other  obligation  was  discharged 
within  a  reasonable  time.  To  such  a  proceeding  the  holder  of  the  equity  of 
redemption  was  an  essential  party,  for  it  was  his  right  that  he  was  to  be 
a£fected.  His  equity  of  redemption  was  regarded  as  the  real  and  beneficial 
estate  in  the  land;  it  was  subject  to  transfer  by  him,  and  to  seizure  and  sale 
on  judicial  process  against  him.  If  it  were  transferred  to  another,  such 
other  party  stood  in  his  shoes  and  was  equally  entitled  to  be  heard  before 
hia  right  could  be  cut  oflF.  It  was  certainly  possible  for  him  to  show  that  the 
mortgage  was  satisfied,  or  his  liability  released,  or  that  in  some  other  way 
the  suit  could  not  be  maintained.  The  holder  of  the  equity  of  redemption 
was  therefore  an  indispensable  party  to  a  valid  foreclosure.  The  old  common- 
law  doctrine  of  mortgages  does  not  now  generally  prevail  in  the  several  states 
of  the  Union.  In  most  of  them  the  mortgage  is  not  regarded  as  a  convey- 
ance, but  is  treated  as  a  mere  lien  or  encumbrance  upon  the  property  as  se- 
curity for  the  payment  of  a  debt,  or  the  performance  of  some  other  pecuniary 
obligation.     But  the  owner  of  the  property,  whether  the  original  mortgagor 


Jan.  1886.]  Adams  v.  Re  Qua.  191 

or  his  successor  in  interest,  haa  the  same  right  to  be  heard  respecting  the  ex- 
istence of  the  debt  or  obligation  alleged  before  the  property  can  be  sold 
which  at  common  law  the  owner  of  the  equity  of  redemption  had  to  be  heard 
before  the  foreclosure  of  his  equity  could  be  decreed":  Terrell  v.  AlUaon,  21 
WaU.  292. 


Adams  v.  Ee  Qua. 

[22  Floeida,  250.] 

Judgment  mat  be  Amended  Nunc  pro  Tunc  ajteb  Lafse  op  Term, 
when  the  record  discloses  that  the  judgment,  aa  amended,  would  have 
been  entered  in  the  first  place  but  for  the  inadvertence  of  the  court,  or 
the  error  or  omission  of  the  clerk. 

Record  can  be  Amended  only  by  Matters  op  Record. 

To  Deterjone  whether  One  is  Party  in  Representative  Capacity,  the 
averments  and  scope  of  the  complaint  must  be  considered. 

JUDGMFJIT  AGAINST  DEPENDANT  PERSONALLY  MAY  BE   AMENDED  SO  aS  to  be 

against  him  as  administrator  de  bonis  non,  cum  testamento  annexo,  etc., 
where  the  record  shows  that  the  action  was  against  him  in  his  capacity 
of  such  administrator. 

Proceeding  to  amend  a  judgment.  An  action  was  com- 
menced which  was  entitled  Helen  Re  Qua  for  the  use  of  Ed- 
win Higgins  against  John  S.  Driggs,  administrator  of  estate 
of  John  S.  Adams,  deceased.  The  complaint  showed  that 
the  claim  was  against  Driggs  in  his  representative  capacity. 
Judgment  was  entered  November  12,  1879,  against  Driggs 
personally,  upon  which  an  execution  issued  July  19,  1880, 
commanding  the  sheriflf  "that  of  the  goods  and  chattels,  lands 
and  tenements  of  John  S.  Driggs,  as  administrator  of  the 
estate  of  John  S.  Adams,  deceased,"  be  made  the  moneys 
designated  in  such  judgment.  Four  days  later,  plaintiflf 
moved  to  amend  the  judgment  nunc  pro  tunc.  Charles  S. 
Adams  having  in  the  mean  time  been  appointed  administra- 
tor de  bonis  non,  cum  testamento  annexo,  of  the  estate  of  said 
John  S.  Adams,  scire  facias  issued  to  him  as  such  administra- 
tor. He  demurred  to  the  scire  facias,  and  also  moved  to 
quash  it.  The  demurrer  was  overruled,  the  motion  denied, 
and  the  judgment  ordered  to  be  amended  so  as  to  be  against 
John  S.  Driggs  as  administrator  de  bonis  non,  cum  testamento 
annexo,  of  the  estate  of  John  S.  Adams,  deceased,  and  to  au- 
thorize a  levy  on  the  goods,  chattels,  lands,  and  tenements  of 
said  estate  in  the  hands  of  said  administrator  to  be  adminis- 
tered. Said  C.  S.  Adams,  as  administrator  de  bonis  non,  etc., 
•ued  out  a  writ  of  error. 


192  Adams  v.  Re  Qua.  [Florida, 

A.  W.  Cockrell  and  Son,  for  the  plaintiflf  in  error. 
H.  Bishee,  for  the  defendant  in  error. 

By  Court,  McWhorter,  C.  J.  The  plaintiflf  made  her  mo- 
tion in  the  circuit  court  of  Duval  County  to  amend  a  judg- 
ment rendered  in  the  circuit  court  of  said  county  on  the 
twelfth  day  of  November,  A.  D.  1879,  wherein  she  was  plain- 
tiff for  the  use  of  Edward  Higgins,  and  "John  S.  Driggs, 
administrator  of  J.  S.  Adams,  deceased,"  was  defendant. 

The  object  of  the  motion  was  that  the  judgment  and  execu- 
tion should  be  so  amended  as  that  it  should  appear  thereon 
that  they  were  awarded  against  John  S.  Driggs,  as  adminis- 
trator de  bonis  non,  cum  testamento  annexe,  of  J.  S.  Adams, 
deceased.  The  rule  is  settled  that  a  judgment  rendered  at 
one  term  may  be  amended  at  a  subsequent  term,  nunc  pro 
tunc,  when  from  the  record  in  the  cause  it  is  apparent,  on 
inspection  thereof,  that  the  proposed  amendment  would  have 
been  a  part  of  the  original  judgment,  or  that  the  original 
judgment  would  have  been  in  accordance  therewith  if  it  had 
not  have  been  for  the  inadvertence  of  the  court,  or  an  error  or 
omission  of  the  clerk. 

The  rule  that  the  record  admits  of  no  alteration  after  the 
term  is  obsolete:  Freeman  on  Judgments,  sec.  71.  What  is 
proper  data  to  authorize  an  amendment  is  a  matter  on  which 
the  decisions  of  the  courts  of  the  different  states  are  contra- 
dictory. The  better  opinion  seems  to  be  that  no  record  can 
be  amended  but  by  matter  of  record :  Pitman  v.  Lowe,  24  Ga. 
429;  Funnell  v.  Jones's  Ex'r,  7  Bush,  359;  Stephens  v.  Wilsonf 
14  B.  Mon.  88;  Makepeace  v.  Lukens,  27  Ind.  435;  Moody  v. 
Grant,  41  Miss.  565. 

The  record,  the  judgment  and  the  execution  contained  in 
which  is  sought  to  be  amended,  shows  that  a  suit  was  brought 
against  John  S.  Driggs,  administrator  of  J.  S.  Adams,  de- 
ceased, on  two  promissory  notes  alleged  to  have  been  made  by 
said  Adams  in  his  lifetime,  and  contains  no  statement  of  any 
cause  of  action  against  Driggs  individually.  It  was  unques- 
tionably a  claim  or  demand  against  Driggs  in  his  representa- 
tive capacity,  and  must  have  been  so  understood  by  all  the 
parties  to  the  suit.  In  a  similar  case  in  New  York,  and  which 
has  mainly  contributed  to  our  conclusion  {Beers  v.  Shannon, 
73  N.  Y.  292),  the  suit  was  entitled  "John  L.  Beers,  executor 
of  the  last  will  and  testament  of  John  Beers,  deceased." 

The  court  say:  "The  first  point  made  by  the  defendant  is 


Jan.  1886.]  Adams  v.  Re  Qua.  198: 

this,  that  the  action  is  not  brought  by  the  plaintiff  in  a  char- 
acter representative  of  the  deceased  obligee.  This  is  based 
mainly  upon  the  omission  of  the  word  '  as '  between  the  name 
of  the  plaintiff  John  L.  Beers,  and  the  description  of  him, 
'executor  of,  etc.,  of  John  Beers,  deceased,'  in  the  title  of  the 
summons,  and  in  the  body  of  the  summons,  and  in  the  title 
to  the  complaint.  It  is  true  that  without  that  word,  in  that- 
position,  it  has  been  sometimes  held  that  the  addition  to  the 
name  of  the  party  is  but  a  descriptio  personae,  and  does  not 
give  to  him  other  than  a  personal  or  individual  character  in 
the  action.  But  it  has  been  held,  on  the  other  hand,  that 
though  there  be  naught  in  the  title  of  the  process  or  the  com- 
plaint to  give  a  representative  character  to  the  plaintiff,  that 
the  frame  and  averments  and  scope  of  the  complaint  may  be 
such  as  to  afl&x  to  him  such  character  and  standing  in  the  litiga- 
tion: Stillwell  v.  Carpenter,  62  N.  Y.  639;  2  Abb.  N.  C.  238. 
In  the  case  in  hand,  the  averments  of  the  complaint  are  such 
that  the  defendant  had  full  notice  of  the  questions  to  be  tried; 
that  there  was  a  definite  issue  presented  for  trial;  that  the 
judgment  to  be  recovered  might  show  what  was  determined 
by  it,  and  that  any  other  question  dependent  upon  the  char- 
acter in  which  the  plaintiff  sued  could  be  readily  presented. 
It  was  plain  from  the  complaint  that  the  cause  of  action,  if 
any,  devolved  upon  the  plaintiff,  as  a  representative  of  the 
deceased  obligee,  by  the  creation  of  a  representative  relation 
by  the  will." 

"The  remedy  was  patent  and  easy  by  motion  to  amend": 
Id.;  see  also  Stillwell  v.  Carpenter,  62  N.  Y.  639;  Shand  r. 
Vardy,  71  Id.  319;  Snead  v.  Coleman,  7  Gratt.  300;  56  Am. 
Dec.  212. 

The  judgment  should  have  been  properly  against  Driggs  in 

his  representative  capacity:  Branch  v.  Branch,  6  Fla.  314; 

but  under  our  liberal  system  of  amendments,  which  makes 

it  the  "  duty  of  the  courts  of  this  state,  and  of  every  judge 

thereof,  at  all  times  to  amend  all  defects  and  errors  in  any 

proceeding  in  civil  cases"  (McClellan's  Digest,  sec.  97,  p.  834), 

if  it  had  been  called  to  the  attention  of  the  court  at  the  trial, 

the  record  would  have  been  amended  by  inserting  the  word 

'*  as  "  before  the  designation  of  his  representative  capacity,  it 

being  apparent  from  the  body  of  the  declaration  that  such 

was  plainly  the  intention.     It  still  being  apparent  from  the 

record,  there  can  be  no  objection  to  making  the  amendment 

at  a  subsequent  term  nunc  pro  tunc.    The  record  also  shows 
AM.  ST.  Rcr.,  Vol.  I.  -  is 


194  Peninsular  R.  R.  Co.  v.  Gaby.  [Florida, 

that  it  was  Driggs,  as  administrator  de  bonis  non,  cum  testa- 
mento  annexo,  who  was  intended,  and  this  amendment  was 
properly  allowed.  As  to  any  rights  acquired  or  lost  under 
this  judgment  prior  to  the  amendment  in  the  court  below  we 
express  no  opinion. 

There  is  no  error  in  the  record,  and  the  judgment  ia 
affirmed.  

Judgment  mat  be  Ektebed  Nunc  fro  Time  wtthout  Notice,  nr  Ala.' 
BAMA,  and  perhaps  ia  all  those  states  in  which  the  action  of  the  court  mast 
be  determined  solely  from  an  inspection  of  its  records:  Fuqtta  v.  Carriel, 
Minor,  170;  12  Am.  Dec.  46;  Olasa  v.  Olaaa,  24  Ala.  468;  Young  v,  StaU 
Bank,  4  Ind.  301;  58  Am.  Dec.  630.  A  record  may  be  amended  in  the  lower 
court  pending  proceedings  by  writ  of  error  or  on  appeal;  and  as  amended, 
may  be  certified  to  the  appellate  court:  Rew  v.  Barker,  2  Cow.  408;  14  Am. 
Dec.  515,  and  note.  While  the  right  to  enter  or  amend  a  judgment  nunc 
pro  tunc  after  the  lapse  of  a  term  is,  so  far  as  we  are  aware,  universally  con- 
ceded, there  ia  a  question  with  respect  to  the  evidence  upon  which  the  action 
of  the  court  may  be  based.  Many  of  the  courts  will  refuse  to  proceed  ex- 
cept where  their  action  can  be  based  solely  upon  matters  in  the  record, 
wherefrom  the  propriety  and  extent  of  their  action  become  apparent.  Others 
will  act  upon  any  competent  legal  evidence:  Freeman  on  Judgments,  sec.  63; 
Baymand  v.  Smith,  1  Met.  65;  71  Am.  Dec.  458;  Summeraett  v.  Summersett's 
Adm'r,  40  Ala.  596;  91  Am.  Dec.  494;  Smith  v.  Hood,  25  Pa.  St.  218;  64 
Am.  Dec.  692. 


Peninsulae  Eaileoad  Company  v.  Gary. 

[22  Florida,  856.] 
EOAD-MASTEB  AND  CONDUCTOB  OF  RAILROAD  COMPANY  HAVE  No  AUTHOBITT 

TO  EicPLOT  Surgeon  to  treat  an  injured  employee  of  such  compaay. 

John  O.  Reardon,  for  the  appellant. 

8.  D.  McConnell,  for  the  appellee. 

By  Court,  Van  Valkenbubgh,  J.  In  February,  A.  D.  1882, 
Thomas  P.  Gary,  by  his  attorney,  sued  the  Peninsular  Rail- 
road Company  to  recover  the  sum  of  $165,  on  account,  for  ser- 
vices rendered  and  medicines  furnished  to  White  Spate,  as  a 
physician  and  surgeon,  at  the  instance  and  request  of  the  de- 
fendant, in  the  county  of  Marion.  A  demurrer  was  filed  by 
the  defendant  to  the  declaration,  which  was  overruled  by  the 
court,  and  a  plea  was  interposed  of  the  general  issue.  In 
June,  1885,  on  the  application  and  consent  of  the  attorneys  of 
both  the  parties,  the  cause  was  referred,  under  the  statute,  to 
Richard  McConathy,  a  practicing  attorney  of  the  court,  to 
hear  said  cause,  and  for  final  determination  thereof,  and  with 


June,  1886.]      Peninsular  R.  R.  Co.  v.  Gaby.  195 

power  to  render  judgment  therein  according  to  the  statutes. 
On  the  27th  of  July,  1885,  the  referee  filed  his  report  and  find- 
ings. He  found  for  the  plaintiflF,  Thomas  P.  Gary,  in  the 
Bura  of  $165,  with  interest  thereon  at  the  rate  of  eight  per  cent 
per  annum  from  the  thirteenth  day  of  January,  1882,  until 
paid,  with  costs.  The  defendant's  attorney  then  moved  the 
said  referee  for  a  new  trial  on  the  following  grounds:  1.  Be- 
cause the  finding  and  judgment  is  contrary  to  law;  2.  Be- 
cause the  statement  of  the  evidence  used  on  said  reference 
does  not  support  said  findings  and  judgment,  and  because 
they  are  contrary  to  the  evidence;  3.  Because  the  judgment 
is  for  a  larger  sum  than  is  sued  for,  and  for  a  larger  amount 
than  is  proven. 

On  the  29th  of  July,  1885,  this  motion  was  heard  by  the 
referee,  who  made  the  following  order:  "It  is  ordered  that  the 
plaintiff  be  required  to  remit  thirty  dollars  of  the  judgment 
herein  on  or  before  the  30th  of  July,  1885,  else  a  new  trial 
will  be  granted."  On  the  30th  of  July,  the  plaintiff  remitted 
thirty  dollars  of  the  principal,  and  interest  on  said  thirty  dol- 
lars, of  the  judgment,  and  the  referee  overruled  the  motion 
for  a  new  trial.  The  defendant  excepted  to  this  ruling  of  the 
court,  and  brings  his  appeal,  assigning  the  following  errors: 
1.  That  referee  erred  in  deciding  that  there  was  sufficient 
evidence  on  the  part  of  the  appellee  to  prove  that  the  appel- 
lant had  employed  him,  and  undertaken  to  pay  him  for  the 
eurgical  attention  to  White  Spate;  2.  The  referee  erred  in 
finding  that  any  authorized  agent  of  the  appellant  had  em- 
ployed in  its  behalf  the  appellee,  or  contracted  with  him  to 
perform  the  surgical  services  in  question;  3.  The  referee  erred 
in  deciding  that  the  appellant  was  bound  to  pay  the  appellee 
for  the  services  in  question  upon  the  employment  of  appellee 
by  either  Redd,  the  road-master,  or  Jolly,  the  conductor,  of 
the  appellant;  4.  The  referee  erred  in  finding  that  White 
Spate  was  wounded  while  in  discharge  of  a  duty  to  appellant; 
6.  The  referee  erred  in  finding  that  the  '*  statement  of  the  evi- 
dence "  operated  as  an  admission  of  facts  therein  set  forth, 
and  in  not  finding  that  said  statement  only  stated  the  testi- 
mony as  given  by  the  different  witnesses;  6.  The  referee  erred 
in  finding  that  Redd,  the  road-master,  had  authorized  the  em- 
ployment of  appellee;  7.  The  referee  erred  in  finding  that 
Jolly,  the  conductor,  had  employed  appellee. 

The  referee's  finding  and  report,  as  it  appears  in  the  record, 
18  as  follows:  — 


196  Peninsular  R.  R.  Co.  v.  Gaby.  [Florida, 

"  Thomas  P.  Gary,  plaintiff,  v.  Peninsular  Railroad  Company, 

defendant. 

"  This  action  this  day  coming  on  for  trial,  came  the  parties 
by  their  respective  attorneys,  and  thereupon  the  parties  filed 
a  statement  of  the  evidence  to  be  considered  herein,  which 
statement  is  now  filed  marked  'A'  No.  1,  which  statement  con- 
tains all  the  evidence  heard  on  the  trial.  And  this  action 
being  heard  on  the  evidence,  and  the  argument  of  counsel^ 
and  the  referee  being  advised,  delivered  a  written  opiniori 
herein  which  is  now  filed.  Thereupon  the  referee  finds  that 
the  law  and  the  proof  herein  is  for  the  plaintiff.  It  is  therefore 
adjudged  that  the  plaintiff,  Thomas  P.  Qary,  recover  of  de- 
fendant. Peninsular  Railroad  Company,  the  sum  of  one  hun  • 
dred  and  sixty-five  dollars,  with  interest  thereon  at  the  rat«i 
of  eight  per  centum  per  annum  from  the  thirteenth  day  of 
January,  1882,  until  paid,  and  his  costs  therein  expended,  t^ 
be  taxed  by  the  court. 

"  Richard  McConathy,  Referee. 

"July  22,  1885." 

The   statement  of  evidence,  referred  to  in  the  finding  an 
marked  "A"  No.  1,  is  as  follows:  — 
"  Thomas  P.  Gary  v.  The  Peninsular  Railroad  Company. 

"  It  is  agreed  by  counsel  for  the  plaintiff  and  defendant 
that  the  following  is  a  true  statement  of  the  evidence  in  the 
above  stated  cause,  and  we  do  hereby  consent  to  waive  the 
examination  of  the  witnesses,  and  use  this  statement  in  evi- 
dence on  the  trial  of  said  cause  as  all  the  evidence  therein. 

"On  August  31,  1881,  one  White  Spate,  who  was  an  em- 
ployee of  the  defendant,  and  working  on  defendant's  railroad, 
was  injured  by  being  run  over  by  one  of  defendant's  trains 
while  he  was  in  discharge  of  his  duty.  Redd,  who  was  a 
road-master  upon  defendant's  railroad,  who  had  charge  of  the 
equad  in  which  Spate  was  working,  obtained  transportation 
for  Spate  on  a  train  of  which  James  Jolly  was  then  conductor, 
and  instructed  Jolly  to  carry  hira  to  the  plaintiff,  at  Ocala, 
for  surgical  treatment,  the  plaintiff  being  a  practicing  physi- 
cian and  surgeon,  residing  at  Ocala,  with  his  diploma  on  file 
in  the  clerk's  office  of  the  clerk  of  the  circuit  court.  Jolly 
carried  the  wounded  man  to  Ocala  and  sent  for  plaintiff, 
and  told  the  plaintiff  what  Redd  had  ordered  him  to  do  with 
the  man,  and  he  requested  plaintiff  to  give  him  the  necessary 
surgical  attention.  Plaintiff  asked  Jolly  who  would  pay  his 
fees.    Jolly  stated  that  the  defendant  would  pay,  and  that 


fune,  1886.]      Peninsular  R.  R.  Co.  v.  Gary.  197 

;le  was  authorized  to  employ  plaintiff.  The  plaintiff  then  ex- 
umined  Spate  and  found  his  leg  badly  mashed,  and  that  the 
Injury  was  such  as  to  render  amputation  necessary  in  order 
to  gave  the  life  of  the  patient.  Plaintiff  then  amputated  the 
leg  of  the  patient  and  treated  him  for  fourteen  days,  until 
he  recovered,  and  paid  out  for  medicines  and  bandages  used 
for  the  benefit  of  the  patient,  and  necessary  to  the  successful 
management  of  the  case,  the  sura  of  twenty-five  dollars.  The 
bill  rendered  by  the  plaintiff  against  the  defendant  for  surgi- 
cal and  medical  treatment  rendered,  and  money  paid  out  for 
the  patient  in  the  treatment  of  the  case,  was  $145,  which  is 
proven  to  be  a  reasonable  charge  for  the  services  rendered. 
There  is  a  controversy  as  to  the  employment  of  the  plaintiff  by 
Redd,  the  road-master.  There  is  no  controversy  about  James 
Jolly,  the  conductor  upon  defendant's  road,  having  employed 
the  plaintiff,  or  as  to  the  performance  of  the  service  by  the 
plaintiff,  or  as  to  the  reasonableness  of  the  bill  rendered  and 
here  sued  on.  The  defendant  denies  the  authority  of  the 
road -master  and  conductor  to  employ  the  plaintiff  so  as  to 
bind  the  defendant  and  render  it  liable  for  the  debt  sued  on. 

"  March  26,  1884. 

(Signed)  "S.  D.  McConnell, 

"Miller  and  Spencer, 

"  Plaintiff's  Attorneys. 
"Scott  and  Reardon, 

"  Defendant's  Attorneys." 

There  is  but  one  question  in  this  case  to  be  considered,  and 
that  is,  Is  the  defendant  bound  by  the  acts  of  the  road-master, 
Redd,  or  the  conductor,  Jolly,  in  the  employment  of  the  plain- 
tiff as  surgeon  for  Spate?  There  is  no  proof  that  the  company 
by  its  general  manager,  or  otherwise,  ever  directly  or  indirectly 
ratified  in  any  manner  the  action  of  Redd  or  Jolly,  or  that 
they,  or  either  of  them,  had  any  authority  to  employ  a  physi- 
cian or  surgeon  in  such  cases,  and  make  such  action  binding 
upon  the  company.  Their  duties  as  road-master  and  conductor 
did  not  necessarily  involve  any  such  authority.  In  1  Rorer 
on  Railroads,  666,  it  is  said  that  "a  yard-master  of  a  rail- 
road company  is  not  so  far  the  agent  of  the  company  as  to  be 
legally  authorized  to  employ  a  physician  to  attend  to  one  of 
the  employees  under  his  charge  who  is  injured  by  the  cars  of 
the  company.  But  it  is  held  that  the  general  superintendent 
possesses  such  power,  and  power  also  to  employ  an  attorney. 
Nor  has  a  station-agent  of  a  railroad  company,  merely  as  such, 


ids  Peninsular  R.  R.  Co.  v.  Gakt.  [Florida, 

authority  to  commit  the  company  to  liability  by  orders  or 
contracts  given  or  made  outside  the  business  of  his  oflfice,  or 
matters  coming  within  the  line  of  his  duties.  And  his  sending 
for  a  surgeon  to  treat  an  employee  of  the  company  who  is  in- 
jured in  the  course  of  his  employment  will  not  in  itself  render 
the  company  liable  to  pay  the  medical  bill  for  such  treatment. 
Nor  will  the  conductor's  direction  to  the  surgeon  to  extend  the 
medical  aid,  or  his  promise  that  the  same  when  rendered  shall 
be  paid  for,  render  the  company  liable  to  pay  for  the  same. 
Such  acts  not  being  within  the  business  employment  of  these 
servants  or  agents,  the  company  are  not  bound  thereby." 

The  acts  of  these  agents  of  the  company  in  the  employment 
of  the  surgeon  should  have  been  ratified  by  the  company 
through  its  general  manager  or  superintendent,  or  the  author- 
ity to  make  such  employment  should  have  in  some  way  been 
proved.  The  plaintiff  was  fourteen  days  in  attendance  on  the 
patient,  suflBciently  long  to  have  frequently  corresponded  with 
the  manager  of  the  road,  and  to  have  received  from  him  rati- 
fication or  otherwise  of  the  employment.  The  road  probably 
had  a  telegraph  line  from  its  headquarters  through  Ocala  by 
which  the  news  could  have  been  very  quickly  conveyed  and 
an  answer  returned.  It  does  not  appear  by  the  record  that 
the  company,  or  any  of  its  oflBcers,  except  only  Redd  and 
Jolly,  were  ever  aware  of  the  injury  done  to  Spate,  or  were  in- 
formed of  the  employment  of  the  plaintiff  until  this  action 
was  brought. 

In  the  case  of  Tucker  v.  St.  Louis  etc.  R^y  Co.,  54  Mo.  177, 
the  court  says:  It  will  appear  by  an  examination  of  the  evi- 
dence that  the  facts  which  it  tended  to  prove,  if  all  taken  to 
be  true,  do  not  prove  the  liability  of  the  defendant  to  pay  for 
the  services  of  the  plaintiff  sued  for.  "  It  is  shown  that  the 
station-agent  of  defendant,  when  the  young  man  was  injured, 
directed  a  boy  to  go  for  a  doctor,  and  that  the  boy  brought 
the  plaintiff,  and  that  the  conductor  on  the  cars  of  defendant 
told  plaintiff  to  give  the  wounded  man  attention  and  he  would 
be  paid;  but  there  is  no  pretense  of  any  evidence  by  these  wit- 
nesses that  they  have  any  authority  to  employ  a  physician  on 
defendant's  accoynt,  or  that  they  ever  pretended  to  employ  a 
physician  on  defendant's  account.  It  is  only  shown  that  they 
were  agents  of  defendant  in  conducting  its  railroad  business^ 
which  of  itself  could  certainly  give  them  no  authority  to  em- 
ploy physicians  for  the  defendant  to  attend  and  treat  persona 
accidentally  injured  on  the  road." 


June,  1886.]     Peninsular  R.  R.  Co.  v.  Gary.  199 

The  rule  as  laid  down  in  Rorer  on  Railroads,  supra,  is  sus- 
tained by  abundant  authority.  See  Atlantic  and  Pacific  R.  R. 
Co.  V.  Reianer,  18  Kan.  458,  where  it  is  held  that  a  mere 
station-agent  has  no  such  authority  to  bind  the  company,  but 
that  the  general  agent  or  manager,  by  virtue  of  his  position, 
has  such  authority:  Marquette  and  Ontonagon  R.  R.  Co.  v. 
Taft,  28  Mich.  289;  Atchison  and  Nebraska  R.  R.  Co.  v. 
Reecher,  24  Kan.  228;  Brown  v.  Missouri  etc.  R.  R.  Co.y  67 
Mo.  122;  Louisville,  Evansville,  &  St.  L.  R.  R.  Co.  v.  McVay,  98 
Ind.  391;  49  Am.  Rep.  770. 

Many  other  cases  to  the  same  effect  might  be  cited,  and  we 
know  of  no  authority  to  the  contrary,  except  the  case  of 
Terre  Haute  &  I.  R.  R.  Co.  v.  McMurray,  98  Ind.  358,  49  Am. 
Rep.  752,  which  we  do  not  approve.  The  company  can- 
not be  held  liable  upon  the  contract  of  the  road-master  or 
conductor  in  employing  the  physician,  inasmuch  as  there  is, 
in  this  case,  no  proof  of  their  authority  to  bind  the  corpora- 
tion. Had  the  acts  been  ratified  by  the  corporation,  or  by 
their  general  manager,  the  case  would  have  been  different. 

The  judgment  is  reversed,  and  a  new  trial  awarded. 


LiABiLmr  OF  Rau-road  Company  foe  Surgeon's  Attendahcb  oh  Is- 
JTTRED  Ehtloyees.  —  A  railroad  company,  like  any  other  employer  of  labor, 
is  not  bound  to  pay  for  medical  or  surgical  services  rendered  to  its  employees 
who  may  have  been  accidentally  injured  in  the  course  of  their  employment; 
and  the  exception  is,  that  where  there  is  an  immediate  and  urgent  necessity 
for  such  services,  they  may  be  procured  at  the  instance  of  the  superior 
agent  of  the  company,  present  at  the  time  being;  and  that  the  plaintiff  should 
notify  the  company,  or  its  manager,  or  some  official  having  general  author- 
ity,  with  all  reasonable  dispatch,  and  obtain  a  ratification,  or  the  reverse,  of 
the  authority  given  by  the  local  agent.  In  the  principal  case  the  plaintiff 
had  ample  opportunity  of  communicating  with  the  managing  officials  of  tho 
company,  but  neglected  to  do  so;  and  it  does  not  appear  that  the  company, 
or  its  officers,  were  ever  aware  of  the  accident  until  the  action  was  brought. 
The  case  of  Terre  HauU  A  I.  R.  R.  Co.  v.  McMurray,  98  Ind.  368,  49  Am. 
Rep.  752,  illustrates  the  exception  to  the  rule.  There,  the  circumstances  of 
the  case  were  of  such  urgent  necessity  that,  in  the  interests  of  humanity,  th« 
surgeon  had  to  be  employed  immediately.  The  accident  occurred  at  a  point 
distant  many  miles  from  the  principal  offices  of  the  company,  and  the  con- 
ductor was  the  highest  agent  of  the  company  on  the  ground.  Tlie  court  held 
that,  under  the  special  circumstances  of  the  case,  the  conductor  had  power  to 
employ  a  surgeon  to  attend  to  the  injured  man,  and  that  the  company  was 
bound  to  pay  for  the  services  rendered.  The  liability  of  the  company  arises 
only  under  the  special  contract  made  on  its  behalf  by  such  of  its  officials  hav- 
ing general  authority  for  that  purpose  (except  in  the  case  of  emergency),  and 
not  by  reason  of  its  relation  of  employer  towards  the  injured  person.  In 
MarqueUe  and  OrUmagon  R.  R.  Co.  v.  Tajl,  28  Mich.  289,  it  was  held  that 
while,  as  a  general  rule,  a  railroad  company  is  not  liable  for  injuries  received 


200  Peninsular  R.  R.  Co.  v.  Gary.  [Florida, 

by  their  employees  in  their  service,  yet  this  rule  is  subject  to  the  exception 
of  cases  where  the  injury  comes  from  the  negligent  employment  by  the  com< 
pany  of  reckless  or  incompetent  servants,  or  worthless  machinery. 

Master  is  Liable  to  Servant  for  Injuries  Caused  by  Neoliokncb 
OF  Incompetent  Fellow-skrvant:  Cayzer  v.  Taylor,  69  Am.  Dec.  317. 

Master  is  Liable  to  Servant  for  Injury  Caused  by  Master's  Neo- 
LICENCE,  when  the  defect  causing  such  injury  was  known  to  the  ma,ster  and 
not  known  to  the  servant:  Butzell  v.  Laconia  Mfg.  Co.,  77  Am.  Dec.  212; 
Nashville  and  Cliattanooga  B.  R.  Co.  v,  EllioU,  78  Id.  506. 

Master  and  Servant  —  Negligence  of  Fellow-servant:  Carroll  v. 
Minnesota,  97  Am.  Dec.  221;  Gilman  v.  Eastern  R.  R.  Co.,  90  Id.  210;  O'Con- 
nell  V.  Baltimore  and  Ohio  R.  R.  Co.,  83  IcL  549. 

Liability  of  Railroad  Company  for  Injury  to  Passengers  is  based 
on  an  altogether  different  principle.  There  the  company  is  bound  to  exer- 
cise the  highest  degree  of  care  and  diligence,  and  is  responsible  for  all  inju- 
ries to  passengers  resulting  from  the  slightest  negligence,  or  want  of  skill  or 
prudence:  Nashville  and  Chattanooga  R.  R.  Co.  v.  Elliott,  78  Am.  Dec.  506. 
Although  railroad  companies  axe  not  held  liable  as  insurers  of  the  safety  of 
passengers  as  they  are  as  common  carriers  of  goods,  and  of  the  baggage  of 
passengers,  yet  the  rule  in  regard  to  the  degree  of  cau:e  and  vigilance  exacted 
from  them  is  an  extremely  rigorous  one.  They  are  held  bound  to  the  highest 
degree  of  care  and  diligence,  and  are  answerable  for  all  injuries  to  passen- 
gers resulting  from  the  slightest  negligence  or  want  of  skill  or  prudence: 
Redfield  on  Railways,  c.  17,  sec.  1,  and  notes;  Philadelphia  and  Reading 
R.  R.  Co.  V.  Derby,  14  How.  468;  Johnson  v.  Winona  and  St.  Peter  R.  R.  Co., 
88  Id.  83;  Warren  v.  Fitchburg  R.  R.  Co.,  85  Id.  700.  In  case  of  passengers, 
railroad  companies  are  bound  to  avail  themselves  of  all  new  inventions  and 
improvements  known  to  them  which  will  contribute  to  the  safety  of  their 
passengers,  and  the  adoption  of  which  is  within  their  power,  so  as  to  be  rea- 
sonably practicable:  Sellers  v.  Delaware  and  Hudson  Canal  Co.,  3  Hun,  340; 
see  note  to  Smith  v.  New  York  etc.  R.  R.  Co.,  75  Am.  Dec.  310. 

Carriers  of  Passengers  are  Responsible  for  Slight  Neglect,  and 
bound  to  use  extraordinary  care:  Morrissey  v.  Wiggins  Ferry  Co.,  97  Am. 
Dec.  402;  State  v.  Baltimore  and  Ohio  R.  R.  Co.,  87  Id.  600.  Railroad  com- 
panies are  held  to  a  strict  rule  of  accountability  for  the  safety  of  passengers. 
To  enable  them  to  properly  discharge  this  duty,  they  have  the  power  to 
make  reasonable  rules  and  regulations:  McDonald  v.  Chicago  and  Nortli- 
western  R.  R.  Co.,  96  Id.  121. 

Contributory  Negligence.  —  Passenger  must  show  that  he  was  not 
guilty  of  any  want  of  ordinary  care  which  directly  contributed  to  the  injury. 
Exceptions  to  this  rule  are,  where  the  injury  was  intentionally  done,  or  where 
it  could  have  been  avoided  by  the  company  by  the  exercise  of  ordinary  care: 
Louismlle  and  Nashville  R.  R.  Co.  v.  Sichings,  96  Am.  Dec.  320.  Sick  per- 
sons have  the  right  to  enter  cars  of  railroad  company,  but  the  cars  are  not 
traveling  hospitals,  nor  are  railroad  employees  nurses.  It  is  the  duty  of  dis- 
abled persons  to  provide  proper  assistance  for  themselves  while  traveling  in 
railroad  cars.  Assistance  extended  by  conductor  is  an  act  of  courtesy 
merely.  If  passenger  requires  more  than  ordinary  time  to  leave  the  car,  he 
should  give  notice  to  the  conductor:  New  Orleans,  Jackson,  and  Great  North- 
em  R.  R.  Co.  V.  Statham,  97  Id.  478,  and  note. 

Railroad  Company  Selling  Through-ticket  is  liable  to  passenger  for  in- 
jury occurring  on  any  of  the  connecting  lines,  but  the  connecting  road  is  not 


June,  1886.]     Harris  v.  Bank  of  Jacksonville.  201 

liable,  if  at  all,  unless  the  injury  occurred  on  its  road,  or  through  its  negli- 
gence: Candee  v.  Pennsylvania  R.  R.  Co.,  94  Am.  Dec.  566.  A  railroad  com- 
pany is  not  held  to  take  every  possible  precaution  against  danger,  but  is 
bound  to  use  the  utmost  care  which  is  consistent  with  the  nature  of  its  busi- 
ness, and  is  responsible  for  the  consequences  of  its  own  negligence,  although 
the  negligence  or  misconduct  of  a  third  party  may  have  contributed  to  the 
injury:  Simmona  v.  New  Bedford,  Vineyard,  and  Nantucket  Steamboat  Com' 
pant/,  93  Id.  99.  Ordinary  capacity,  and  ordinary  care  in  protecting  himself, 
is  all  that  is  required  of  a  passenger  in  a  railway  car;  and  a  sick  or  aged  per- 
son or  child  is  entitled  to  more  care  from  a  railroad  company  than  a  person 
in  good  health,  or  under  no  disability:  Sheridan  v.  Brooklyn  and  Newton  R.  R. 
Co.,  93  Id.  490,  and  note.  A  railroad  company  is  not  liable  for  injuries  caused 
to  a  passenger  during  a  fight  among  a  mob  of  drunken  men,  who  rushed  with 
■uch  violence  and  in  such  numbers  upon  the  cars  as  to  overwhelm  the  con- 
ductor as  well  as  the  passengers:  Pittsburgh  etc.  R'y  Co.  v.  Binds,  91  Id.  224. 

Measure  of  Damages.  —  The  expenses  of  medical  treatment  and  care  are 
included  among  the  ordinary  grounds  of  damages  necessarily  resulting  from 
bodily  injuries:  Pennsylvania  R.  R.  Co.  v.  Books,  57  Pa.  St.  339;  OIUo  <t  Miss. 
R'y  Co.  v.  Dickerson,  59  Ind.*317. 

CoHFAKATiVE  NsouoENCE  is  a  doctrine  based  upon  the  relative  care,  or 
Absence  of  care,  of  the  parties.  All  the  surrounding  circumstances  of  each 
particular  case  are  to  be  taken  into  consideration.  The  question  of  liability 
does  not  depend  absolutely  on  the  absence  of  all  negligence  on  the  part  of  the 
plaintiff  but  upon  the  relative  degree  of  care  or  want  of  care,  as  manifested 
by  both  parties.  The  true  doctrine  is,  that  the  degree  of  care  required  by 
the  plaintiff  is  in  inverse  proportion  to  the  negligence  of  the  defendant,  —  the 
greater  the  negligence  shown  by  the  defendant,  the  less  will  be  the  degree  of 
care  required  by  the  plaintiff  to  entitle  him  to  recover:  Galtna  and  Cldcago 
Umm  R.  R.  Co.  v.  Jacobs,  20  111.  478. 

Person  TRAVXLiNa  on  Free  Pass  does  not  assume  any  risks  arising  from 
gross  negligence  of  the  company:  Indiana  Ctntral  R.  R.  Co.  ▼.  Mundy,  83  Am. 
Dec.  339. 


Harris  v.  Bank  of  Jacksonville. 

['22  Flobida,  501.J 

BvisxitCK.  —  The  death  of  one  of  the  parties  to  a  receipt,  acceptance,  or 
other  writing,  precludes  the  survivor  from  testifying  against  the  assignee 
or  representative  of  the  decedent,  with  respect  to  an  alleged  alteration 
thereof,  adthough  the  decedent  acted  on  behalf  of  a  partnership,  pro« 
vided  his  copartners  were  not  present  at  the  time  the  writing  was  exe- 
cuted, and  therefore  can  give  no  evidence  with  respect  thereto. 

Sdbvivino  Partt  to  Transaction  will  not  be  PERsirrTED  to  Testify 
•gainst  a  deceased  party  or  his  assignee  or  representative,  on  the  ground 
that  others  were  jointly  interested  with  the  decedent  in  the  transaction, 
if  none  of  them  participated  in  the  transaction,  or  are  able  to  testify 
concerning  it. 

Wberb  Writing  is  Intrusted  to  Another  with  Blanks  to  be  Filled, 
he  luu  no  authority  to  so  fill  them  as  to  vary  or  purvcrt  the  e^ope  or 
meaning  of  the  words  previously  written  or  printed,  nor  to  strike  out 


202  Harris  v.  Bank  of  Jacksonville.        [Florida, 

any  of  the  written  or  printed  Words,  and  replace  them  with  others  of  a 
Bubstantially  different  signification. 

Burden  of  Proving  Alterations  in  Writino  after  its  Execution 
rests  upon  him  who  alleges  it;  but  the  burden  shifts  from  him  to  his 
adversary,  if  the  writing,  on  being  produced,  appears  to  have  been  al- 
tered in  any  substantial  particular. 

Apparent  and  Material  Alteration  in  Writino  hust  be  explained  by 
the  party  who  offers  it  in  evidence. 

There  is  No  Apparent  Alteration  of  Paper  where  there  is  no  inter- 
lineation, erasure,  difference  in  handwriting,  change  of  figures  or  words, 
nor  any  irregularity  on  the  face  of  the  paper  calculated  to  arouse  sus- 
picion. An  alteration  of  a  bill  is  not  presumed  because  the  words,  "Pay- 
able at  Metropolitan  Nat.  Bank,  New  York  City,"  are  written  across 
the  bill  in  the  handwriting  of  the  drawer,  and  above  the  acceptance. 

Bill  in  equity  by  appellant,  Harris,  to  compel  the  surren- 
der and  cancellation  of  a  certain  draft,  and  to  enjoin  an  action 
at  law  pending  thereon.  Appellant  claimed  that  the  draft 
was  given  by  him  for  the  surrender  of  a  preceding  draft  drawn 
on  him  at  Citra,  Florida,  by  H.  P.  Robinson  and  Brother,  and 
of  which  he  was  an  accommodation  acceptor.  He  now  claimed 
that  his  acceptance  had  been  substantially  altered  by  writ- 
ing over  it  the  words  ''Payable  at  Metropolitan  Nat.  Bank, 
New  York  City."  The  draft,  including  these  words,  was  in 
the  handwriting  of  C.  F.  Robinson,  who  was  deceased  at  the 
time  of  the  trial,  but  who  at  the  time  of  the  drawing  and 
accepting  of  the  draft  was  a  member  of  the  firm  of  H.  P. 
Robinson  and  Brother,  and  the  only  member  who  knew  any- 
thing about  such  drawing  and  accepting.  After  a  trial,  com- 
plainant's bill  was  dismissed. 

Fleming  and  Daniel,  for  the  appellant. 

A.  W.  Cockrell  and  Son,  and  J.  M.  Barrs,  for  the  appellees. 

By  Court,  Raney,  J.  The  acceptance  by  appellant  of  the 
bill  of  exchange  of  February  20,  1884,  though  in  law  a  trans- 
action between  him  and  both  members  of  the  firm  of  H.  P. 
Robinson  and  Brother,  was  in  fact  conducted  between  him  and 
the  deceased  member,  C.  F.  Robinson,  who,  though  acting  for 
his  firm,  was  the  only  one  of  them  who  actually  participated 
in  the  negotiation  and  consummation  of  the  transaction  with 
the  appellant. 

The  act  of  1874,  chapter  1983,  section  24,  page  518,  of  Mc- 
Clellan's  Digest,  after  declaring  that  no  person  shall  be  ex- 
cluded as  a  witness  by  reason  of  his  interest  in  the  event  of 
the  action,  or  because  he  is  party  thereto,  enacts,  in  the  form  of 
a  proviso,  "  that  no  party  to  such  action,  or  person  interested 


June,  1886.]    Harbis  v.  Bane  of  Jacksonville.  203 

in  the  event  thereof,  nor  any  person  from,  through,  or  under 
whom  any  such  party  or  interested  person  derives  any  interest 
or  title  by  assignment  or  otherwise,  shall  be  examined  as  a 
witness  in  regard  to  any  transaction  or  communication  be- 
ween  such  witness  and  the  person,  at  the  time  of  such  exami- 
nation, deceased,  ....  against  the  executor,  ....  assignee, 
....  or  survivor  of  such  deceased  person,  but  this  prohibition 
ehall  not  extend  to  any  transaction  or  communication  as  to 
which  any  such  ....  assignee  ....  shall  be  examined  on 
his  own  behalf,  or  as  to  which  the  testimony  of  such  deceased 
person  shall  be  given  in  evidence." 

It  is  claimed  by  appellant,  who  was  complainant  in  the 
lower  court,  that  at  the  time  he  accepted  the  bill  of  exchange 
the  words,  "  Payable  at  Metropolitan  Nat.  Bank,  New  York 
City,"  which  now  appear  immediately  above  what  he  charged 
to  be  in  fact  his  acceptance  on  the  face  of  the  paper,  were  not 
on  it,  but  that  they  have  been  added  since,  and  that  the 
acceptance  made  by  him  was  in  the  following  language: 
"Accepted,  James  A.  Harris,"  and  none  other.  As  the  bill  of 
exchange  now  stands,  the  acceptance  is  in  the  language  quoted 
in  this  paragraph. 

The  acceptance  of  this  paper  was,  barring  for  the  present  the 
effect  of  the  fact  that  C.  F.  Robinson  was  acting  in  behalf,  not 
only  of  himself,  but  also  of  a  partner  who  is  still  living  (a 
point  to  be  considered  hereafter),  a  "transaction"  with  a  de- 
ceased person,  within  the  meaning  of  the  statute,  and  it  seems 
clear  that  Harris  is  excluded  from  testifying  as  to  any  addi- 
tion to  or  alteration  of  the  acceptance  having  been  made.  The 
acceptance  is  the  transaction,  and  to  testify  as  to  what  were 
its  real  terms  is  unquestionably  testifying  as  to  the  transaction 
between  Harris  and  a  person  who  was  dead  when  Harris  was 
examined  as  a  witness,  and  as  to  which  no  one  else  in  fact 
participated  in  transacting.  In  Raubitschek  v.  Blank,  80  N.  Y. 
478,  where  there  was  an  exchange  of  lands  between  Herdfelder 
and  Blank,  Blank  gave  Herdfelder  a  check  for  the  amount  of 
the  difference  in  value,  and  Herdfelder  gave  Blank  a  receipt, 
and  Herdfelder  assigned  the  check  to  Raubitschek,  and  died 
prior  to  the  trial,  it  was  held  that  Blank  was  incompetent  to 
testify  on  the  trial  as  to  the  transaction  between  him  and 
Herdfelder.  In  Boughton  v.  Bogardus,  35  Hun,  198,  an  action 
brought  to  recover  the  value  of  services  rendered  by  the  plain- 
tiff, a  female,  to  defendant's  intestate  prior  to  February  7, 1882» 
the  plea  was  payment.     Upon  the  trial  before  the  referee,  the 


204  Harris  v.  Bank  of  Jacksonville.       [Florida, 

defendant  produced  a  receipt  executed  by  the  plaintiff,  by 
which  she  acknowledged  the  receipt  of  fifty  dollars  from  the 
intestate  in  full  of  all  demands,  of  whatever  nature  or  kind,  up  to 
date,  February  11,  1882,  and  proved  that  she  had  delivered  it 
to  the  deceased.  The  plaintiff  was  then  allowed,  against  the 
defendant's  objection,  to  testify  that  the  words  italicized  had 
been  added  since  she  signed  and  delivered  it  to  the  intestate, 
and  were  not  there  when  she  signed  it;  but  the  supreme  court, 
on  appeal,  held  the  testimony  to  be  inadmissible,  as  it  related 
to  a  personal  transaction  between  the  witness  and  the  de- 
ceased. The  execution  and  delivery  by  the  plaintiff  to  the 
deceased  of  the  receipt  were  declared  to  be  clearly  a  personal 
transaction  between  herself  and  the  deceased.  In  Foster  v. 
Collner,  107  Pa.  St.  305,  the  decision  was,  that  where  a  note  in 
suit  is  in  the  same  condition  at  the  trial  as  at  the  death  of  the 
assignor,  the  assignee  cannot  testify  that  it  is  now  partly  in 
pencil:  Smith  v.  Burnet,  35  N.  J.  Eq,  314;  Louisas  Adm'r  v. 
Easton,  50  Ala.  470;  Pease  v.  Barnett,  30  Hun,  525. 

There  can  be  no  doubt  that  an  attempt  to  show  by  Harris 
that  the  alleged  addition  was  made  to  the  acceptance  would 
be  within  the  prohibition  of  the  statute,  if  C.  F.  Robinson, 
with  whom  he  actually  dealt,  had  been  solely  interested,  and 
acting  for  himself  only,  on  his  side  of  the  transaction.  If  he 
would  be  a  competent  witness  to  testify  as  to  the  terms  of  the 
acceptance,  and,  consequently,  an  alteration  thereof  in  one 
particular,  he  would  be  competent  to  do  so  as  to  a  change  in 
any  other  particular, — to  make  it  conditional,  or  even  to  de- 
stroy its  effect  altogether. 

Does  or  should  the  mere  fact  that  at  the  time  of  this  trans- 
action there  was  another  person  jointly  interested  with  C.  F. 
Robinson,  and  jointly  bound  by  his  acts,  exempt  Harris  from 
the  exclusion  which  the  statute  places  upon  him  in  a  case 
where  no  third  person  would  be  so  interested  in  or  bound  by 
the  dealings  of  Robinson?  The  theory  of  the  proviso  to  the 
statute  is,  that  where  one  of  two  persons,  whose  mouths  have 
been  opened  by  its  general  provision  to  testify  as  to  a  transac- 
tion between  them,  has  been  taken  away  by  death,  the  mouth 
of  the  survivor  should  be  closed  also  as  to  such  transaction 
against  the  executor  or  other  representative  of  the  deceased 
person,  or  his  assignee  or  other  person  claiming  through  him, 
until  or  unless  the  executor,  assignee,  or  other  person  repre- 
senting or  claiming  under  such  deceased  person  shall  him- 
self testify  as  to  such  transaction,  or,  having  preserved  the 


June,  1886.]    Harris  v.  Bank  of  Jacksonville.  205 

testimony  of  such  deceased  person  as  to  it,  shall  use  it  in 
evidence. 

To  the  living  party  to  the  transaction  it  prescribes  perpetual 
silence  as  against  the  representatives  of  the  dead,  and  his 
assignee  or  others  claiming  under  him,  unless  such  repre- 
sentative or  assignee  or  other  claiming  under  him  shall  him- 
self elect  to  testify  as  to  such  transaction,  or  to  introduce  the 
testimony  of  the  deceased  as  to  it.  What  the  living  knows 
or  would  testify  is  excluded  because  what  the  dead  would  tes- 
tify if  living  cannot  be  or  is  not  given  in  evidence;  or  because 
his  representative  or  assignee  is  not  himself  so  acquainted 
with  the  facts  of  it  as  to  encourage  him  to  go  upon  the  stand; 
this  is  the  underlying  principle  of  the  exclusion:  as  one  is 
not  confronted  by  the  other,  the  former  is  restrained  from  say- 
ing anything.  The  temptation  to  misrepresentation  and  per- 
jury in  such  cases,  however  superior  many  might  prove  to  it, 
was  doubtless  thought  by  the  legislature  to  be  too  great  to 
permit  the  survivor  to  speak;  the  interest  of  those  claiming 
under  the  deceased,  if  not  the  ordinary  principles  of  fairness, 
was  thought  to  demand  the  protection  of  such  silence,  unless 
and  until  they  should  themselves  elect  to  testify,  as  to  the 
transaction,  or  to  introduce  the  deceased's  testimony  as  to  it. 
In  case  the  executor  or  assignee  testifies  as  to  the  transac- 
tion,— tells  under  oath  what  he  may  know  about  it, — or  in 
case  he  introduces  the  evidence  of  the  deceased  as  to  it,  his 
doing  BO  is  deemed  by  the  statute  a  sufficient  reason  for  ad- 
mitting the  survivor  of  the  parties  to  such  transaction  to  tes- 
tify; because  in  the  one  case  such  survivor  would  encounter 
what  such  executor  or  assignee  may  know  of  the  transaction, 
and  in  the  other  case  he  is  confronted  by  the  statements  of  the 
deceased  as  to  the  facts  and  circumstances  of  the  same  trans- 
action which  he  will  detail  his  own  account  of;  and  in  both 
cases  such  executor  or  assignee,  or  other  person  of  a  like  class, 
exercises  his  privilege  with  a  full  knowledge  of  its  letting  in 
the  survivor  to  testify  and  of  even  the  possible  consequence 
thereof 

In  no  way  does  the  fact  that  a  third  person,  having  no 
actual  participation  in  the  transaction,  has  a  joint  interest 
with  the  deceased  person  supply  the  same  or  like  guaranties 
of  the  attainment  of  the  truth,  or  of  the  protection  of  those 
claiming  under  the  deceased,  that  the  exceptions  to  the  ex- 
cluding terms  of  the  proviso  gives.  Such  joint  interest  has 
not  been  made  an  exception  to  the  proviso,  though  others  were 


206  Harris  v.  Bank  of  Jacksonville.        [Florida, 

made.  It  would  be  hard  to  conceive  a  sound  reason  why  the 
survivor  should  testify  in  his  own  behalf  as  to  a  transaction 
conducted  by  him  and  the  deceased  alone,  simply  because  a 
third  person  was  interested  with  the  deceased  party,  and  yet 
be  excluded  from  testifying  as  to  another  transaction  conducted 
in  the  same  manner,  but  in  which  he  and  the  deceased  alone 
were  interested.  The  fact  of  such  joint  interest  has,  to  our 
minds,  in  itself,  no  effect  upon  the  question  whatever;  and, 
upon  principle,  we  think  Harris  was  incompetent  to  testify, 
and  was  properly  excluded,  nor  are  w©  without  authority  upon 
the  subject. 

In  Hunter  v.  Herrick,  26  Hun,  272,  Hunter  sued  Herrick, 
executor  of  Carlton  \V.  Herrick,  deceased,  who,  with  one  Van- 
derburgh and  another,  had  been  partners  under  the  style  of  L. 
Vanderburgh  &  Co.,  and  had  made  the  promissory  note  sued 
on.  Vanderburgh  was  called  as  a  witness  by  plaintiff,  and 
interrogated  as  to  a  conversation  between  himself  and  defend- 
ant's testator  in  reference  to  the  formation  of  the  alleged  part- 
nership, and  it  was  objected  to  as  being  a  personal  transaction 
between  Vanderburgh  and  the  deceased.  The  supreme  court 
held  it  was  such,  and  that  Vanderburgh,  being  "  interested  in 
the  event  of  the  action,"  could  not  testify.  In  Hildehrant  v. 
Crawford,  65  N.  Y.  107,  where  it  was  claimed  that  Hildebrant's 
conversation  was  with  Ridder,  a  deceased  partner  of  Crawford, 
but  was  decided  in  fact  not  to  be  so,  it  was  said:  "If  it  was 
clearly  shown  that  the  conversation  pointed  at  was  between 
Ridder  and  Hildehrant  in  any  proper  sense,  there  might  be 
force  in  the  objection  "  that  it  was  a  personal  transaction,  and 
inadmissible. 

In  McWhorter  v.  Sell,  66  Ga.  139,  where  A  sold  to  B  his  in- 
terest in  a  note  of  C,  payable  to  the  firm  of  A  and  B,  and  then 
died,  it  was  held  that  C  was  not  a  competent  witness  in  a 
suit  by  B  to  prove  payment  to  A:  See  13  U.  S.  Digest,  N.  S., 
p.  946,  sec.  41. 

The  presence  of  disinterested  parties  at  the  time  of  the 
transaction,  as  to  which  it  has  been  sought  to  have  the  sur- 
vivor testify,  is  shown  by  the  following  cases  not  to  save  him 
from  the  excluding  effect  of  the  proviso:  Brague  v.  Lord,  67 
N.  Y.  495;  Kraushaar  v.  Meyer,  72  Id.  602. 

2.  It  is  contended  by  appellant  that  the  bill  of  exchange 
bears  upon  its  face  presumptive  evidence  of  the  alleged  altera- 
tion without  the  authority  of  Harris.  As  drawn,  directed  to 
"James  A,  Harris,  Citra,  Florida,"  he  says  it  was  payable  at 


June,  1886.]     Harris  v.  Bank  of  JACKS0N\^LLE.  207 

that  place,  yet  the  writing  across  the  face  made  it  payable  at 
a  different  place,  and  this  is  in  a  different  handwriting  from 
that  of  Harris. 

The  cases  cited  in  support  of  this  point  are  Angle  v.  N.  W. 
Mutual  L.  Ins.  Co.,  92  U.  S.  330,  and  Desbrow  v.  Wentherley,  6 
Car.  &  P.  758.   . 

In  the  former  case  it  was  held  that  where  a  party  to  a  nego- 
tiable instrument  intrusts  it  to  another  for  use  as  such,  with 
blanks  not  filled,  it  carries  on  its  face  an  implied  authority  to 
complete  it  by  filling  them,  but  not  to  vary  or  alter  its  mate- 
rial terms  by  erasing  what  is  written  or  printed  as  a  part 
thereof,  nor  to  pervert  its  scope  or  meaning  by  filling  the 
blanks  with  stipulations  repugnant  to  what  was  plainly  and 
clearly  expressed  in  the  instrument;  and  also  that  the  ma- 
terial alteration  of  a  written  instrument,  without  authority, 
renders  it  void.    The  printed  form,  signed  in  this  case  in  blank 

by  the  plaintiff,  seems  to  have  been  as  follows:   "  Pay  to 

dollars,  on  account  of ,  in  drafts  to  the  order  of 

."     He  signed  his  name  immediately  after  and  close  to 


the  last  word.  The  party  to  whom  it  was  delivered  so  signed 
erased  the  words  "  drafts  to  the  order  of,"  and  inserted,  pre- 
ceding the  erasure,  the  words  "  current  funds."  It  was  held 
that,  though  the  delivery  authorized  the  filling  up  the  blanks 
in  any  manner  consistent  with  the  terms  of  the  form,  yet  it 
did  not  permit  the  erasure  and  change  as  to  the  mode  of  pay- 
ment, as  the  language,  "  in  drafts  to  the  order  of,"  was  an  ex- 
pression of  the  signer's  will  and  direction  in  the  premises,  and 
wholly  inconsistent  with  a  payment  in  funds.  As  to  whether 
the  order  in  this  case  bore  upon  its  face  the  marks  of  its 
infirmity,  it  is  said:  *' Actual  notice  in  such  a  case  is  not 
required,  even  in  suits  founded  upon  negotiable  securities 
where  the  evidence  of  its  infirmity  consists  of  matter  apparent 
upon  its  face;  nor  is  any  different  or  stricter  rule  applicable 
in  cases  like  the  present,  it  appearing  that  the  printed  words, 
though  erased  so  as  to  be  inoperative,  were  still  entirely  leg/  • 
ble,  even  to  the  casual  reader,  and  that  the  words  'current 
funds,'  inserted  before  the  erased  word  '  drafts,'  were  plainly 
repugnant  to  the  erased  words  'drafts  to  the  order  of,'  which 
followed  them  in  the  same  connection." 

Deibrow  v.  Weatherley,  eupra,  was  a  case  at  nisi  prius  before 
Tindal,  C.  J.  The  bill  of  exchange  sued  on  was  drawn  by 
Williamson  on  the  defendant,  who  accepted  it,  and  William- 
son indorsed  it  to  the  plaintiff.     Under  the  words  "Accepted, 


208  Harris  v.  Bank  of  Jacksonville.       [Florida, 

H.  0.  Weatherley,"  were  written,  but  not  in  the  defendant's 
handwriting,  the  words  "Payable  at  Messrs.  Ashleds  and  Sons, 
135  Regent  Street."  The  bill  appeared  upon  its  face  to  have 
been  changed  from  "  five  "  to  "six"  months  as  to  time  of  pay- 
ment. 

Williamson,  having  been  called  as  a  witness  by  the  plaintiff, 
Bwore  that  he  drew  the  bill  himself,  and  that  defendant  ac- 
cepted it  for  his  accommodation,  and  handed  it  over  to  plain- 
tiff, and  received  £350  from  him,  and  that  the  bill  had  not 
been  altered  since  it  was  accepted.  With  respect  to  the 
words  "  Payable,"  etc.,  he  said  that  he  could  not  state  whether 
they  were  written  before  or  after  the  defendant  accepted  the 
bill,  but  he  thought  they  were  written  on  the  same  day;  yet  he 
would  not  swear  that  they  were  not  written  on  a  subsequent 
day.  The  chief  justice,  after  speaking  of  the  alteration  of  the 
time  of  payment,  said:  "  But  there  is  another  which,  on  the 
testimony  of  Mr.  Williamson,  was  made  after  the  acceptance, 
though  he  will  not  say  exactly  when  it  was  done.  I  allude  to 
the  words  '  Payable,'  etc.  This  being  an  alteration  after  the 
acceptance,  or  at  the  time,  it  is  incumbent  on  the  plaintiff  to 
show  that  it  was  made  with  the  consent  of  the  party  accept- 
ing," etc. 

In  the  former  case,  the  evidence  of  alteration  and  erasures 
on  the  face  of  the  instrument  were  enough  to  put  the  party 
upon  inquiry;  in  the  latter,  it  is  plain  that  the  chief  justice 
understood  the  testimony  of  Williamson  as  meaning  or  estab- 
lishing that  the  words  "  Payable,"  etc.,  had  been  added  after 
the  signing  of  the  acceptance,  but  whether  immediately  fol- 
lowing, or  how  long  after,  was  uncertain.  Besides  the  peculiar 
position  of  the  questioned  words,  there  was  extraneous  evi- 
dence of  an  alteration  having  been  made. 

Where  the  acceptor,  sued  upon  a  bill  of  exchange,  alleges  in 
his  plea  that  it  has  been  altered  materially  and  without  his 
authority  since  he  accepted  it,  the  burden  is  upon  him  to 
prove  the  particular  alteration  set  up  in  his  plea;  and  such  is 
unquestionably  the  rule,  where,  in  a  case  like  the  present,  the 
acceptor  becomes  an  actor  in  a  court  of  equity  for  the  purpose 
of  obtaining  a  decree  for  the  cancellation  or  surrender  of  the 
acceptance  on  the  ground  of  such  alteration,  and  the  answer 
of  the  holder  of  it  at  least  puts  in  issue  the  alteration,  though 
it  may  be  not  in  such  form  as  to  be"  evidence,  and  require  the 
testimony  of  two  witnesses,  or  of  one,  and  a  corroborating  cir- 
cumstance, to  overcome  it.     The  production  of  the  bill  of  ex- 


June,  1886.]    Habris  v.  Bank  of  Jacksonville.  209 

change  in  evidence  will,  if  the  alteration  is  apparent  upon  its 
face,  make  a  prima  facie  case  for  the  acceptor,  and  throw  the 
burden  upon  the  holder,  to  show  that  it  was  made  before  it 
was  accepted,  or  if  since,  by  the  acceptor's  authority.  If 
there  is  nothing  upon  the  face  of  the  instrument  to  indicate 
an  alteration,  then  the  allegations  of  the  acceptor  must  be 
proved  by  extraneous  testimony.  The  party  producing  and 
claiming  under  the  paper  is  bound  to  explain  every  apparent 
and  material  alteration;  if  it  appears  to  have  been  altered,  he 
must  explain  this  appearance;  if  there  is  apparent  upon  its 
face  any  mark  of  or  ground  for  suspicion,  he  must  remove  the 
suspicion;  but  if,  on  the  other  hand,  however  material  in  fact 
the  alteration  of  the  bill  may  be,  there  is,  upon  its  face,  no 
evidence  or  mark  raising  a  suspicion  thereof,  the  holder  is  not 
called  upon  to  make  an  explanation  on  the  mere  production 
of  the  bill,  or  to  introduce  any  testimony  until  the  alteration 
has  been  shown  by  suflBcient  evidence  outside  of  the  paper. 
In  Meikel  v.  State  Savings  Institution,  36  Ind.  355,  it  was 
claimed  that  the  words  "  at  the  First  National  Bank  of  In- 
dianapolis "  had  been  inserted  in  the  body  of  the  note  since 
defendant  had  signed  and  delivered,  but  there  was  upon  its 
face  no  indication  of  any  alteration,  and  it  was  held  that 
where  a  defendant  alleges  an  alteration  of  the  note  after  it  has 
been  signed,  and  there  is  no  indication  of  such  alteration  on 
its  face,  the  burden  of  the  issue  is  upon  the  defendant:  1 
Greenl.Ev.,8ec.364,andnote8;  Daw« v. Jenny,! Met. 221;  Wilde 
V.  Armsby,  6  Cush.  314;  Chism  v.  Toomer,  27  Ark.  108;  ElbeH 
V.  McClelland,  8  Bush,  577;  2  Daniel  on  Negotiable  Instru- 
ments, Bees.  1417  et  seq.;  Byles  on  Bills,  492;  Hillsv.BarneSj 
11  N.  H.  395. 

In  the  case  at  bar,  it  is  admitted  that  C.  F.  Robinson,  the 
deceased  partner,  had  the  management  of  the  financial  busi- 
ness of  the  firm,  and  that  the  draft  in  question,  and  another 
of  the  same  date  and  amount  but  payable  in  six  months,  are 
in  his  handwriting,  except  the  printed  parts  thereof,  and  ex- 
cepting the  words  "Accepted,  James  A.  Harris,"  which  are  in 
appellant's  handwriting.  It  is  also  admitted  that  the  words 
in  the  handwriting  of  Harris  are  written  in  red  ink.  What 
evidence  of  any  alteration,  or  mark  of  suspicion  thereof,  is 
there  upon  the  face  of  this  bill?  There  is  no  interlineation, 
no  erasure,  no  change  or  correction.  The  words  "  Payable  at 
Metropolitan  Nat.  Bank,  New  York  City,"  written  across  the 
face  of  the  bill,  are  in  the  same  handwriting — that  of  C.  F. 

Am.  St.  Kxe.,  Vol.  L  — 14 


210  Habris  v.  Bank  of  Jacksonville.       [Florida, 

Robinson — as  the  other  written  parts  of  the  bill,  except  the 
words  ''Accepted,  James  A.  Harris,"  which  are  right  under 
them,  and  in  the  handwriting  of  Harris.  If  the  above  words, 
constituting  the  alleged  alteration,  were  in  the  handwriting 
of  a  third  party,  it  would  be  a  suspicious  circumstance;  but 
being  in  that  of  the  same  party  who  wrote  the  bill,  and  stand- 
ing immediately  over  the  writing  and  signature  of  Harris,  we 
are  unable  to  see  anything  in  the  appearance  of  the  bill  that 
indicates  that  it  has  been  altered,  or  that,  in  the  light  of  au- 
thority, can  be  held  to  be  an  apparent  alteration.  In  all  the 
cases  where  the  alteration  has  been  held  apparent,  which  dili- 
gent search  upon  our  own  part  and  the  industry  of  learned 
and  zealous  counsel  has  produced,  there  has  been  an  inter- 
lineation, erasure,  diflference  of  handwriting,  change  of  figures 
or  words,  or  some  irregularity  calculated  to  arouse  suspicion, 
on  the  face  of  the  paper.  Here  we  have  nothing  of  the  kind; 
not  even  that  of  the  questioned  words  being  below  the  signa- 
ture, as  was  the  fact  in  Desbrow  v.  Weatherley,  supra,  and 
which,  on  account  of  its  irregularity,  may  be  a  sufficient  cir- 
cumstance to  put  the  holder  or  person  taking  the  paper  upon 
inquiry;  but  the  words  objected  to  are  above  his  signature, 
and  in  such  case,  the  presumption  is,  that  they  are  adopted  by 
his  signature,  or  in  other  words,  legally  his  act,  unless  there 
is  something  in  their  appearance  to  indicate  the  contrary; 
Davis  V.  Jenny,  1  Met.  221;  49  Am.  Dec.  554. 

In  Simpson  v.  Stackhouse,  9  Pa.  St.  186,  the  place  of  pay- 
ment was  in  a  diflferent  handwriting  from  the  body  of  the  bill, 
which  had  been  written  by  the  defendant,  and  it  was  held 
that  there  was  a  presumption  of  an  alteration;  and  in  the 
other  cases  cited  in  that  opinion  there  are  other  similar  sus- 
picious circumstances.  In  Jones  v.  Ireland,  4  Iowa,  63,  the 
words  "ten  per  cent"  were  in  the  same  handwriting  as  the. 
body  of  the  note,  but  in  blue  ink,  whereas  the  body  of  the  note 
and  the  signature  were  in  black  ink.  The  defendant,  the 
maker  of  the  note,  had  signed,  but  had  not  written  any  other 
part  of  it.  It  was  held  that  no  suspicion  requiring  the  plain- 
tiff to  show  that  the  words  in  blue  ink  were  made  by  authority 
of  the  maker  was  cast  upon  the  note.  In  Wilson  v.  Harris, 
35  Id.  507,  a  portion  of  the  indorsement  signed  by  the  defend- 
ant was  in  a  dififerent  ink  and  handwriting  from  the  remain- 
der, but  this  was  held  not  to  afford  such  a  prima  facie  evidence 
of  a  fraudulent  alteration  as  to  require  the  plaintiff  to  explain 
them. 


June,  1886.]    Harris  v.  Bank  of  Jacksonville.  211 

There  is  nothing  to  justify  us  in  holding  that  the  questioned 
words  were  not  written  before  Harris  accepted  the  bill;  nor  is 
there  anything  extraordinary  or  suspicious  in  the  form  of  the 
bill.  The  fact  that  Harris  wrote  in  red  ink  is  not  evidence  of 
any  subsequent  alteration  of  the  instrument. 

3.  The  testimony  of  the  appellant  as  to  the  alleged  altera- 
tion of  the  acceptance  being  inadmissible,  and  there  being 
upon  the  face  of  the  draft  no  evidence  of  such  alteration,  and 
as  there  is  in  the  record  no  other  testimony  to  support  the 
allegation  of  such  alteration,  the  decree  must  be  aflBrmed,  and 
it  is  unnecessary  to  consider  any  other  questions  than  those 
disposed  of  above. 

The  decree  is  affirmed. 


Witnesses  xs  Action  against  Administrator. — Under  section  1880  of 
the  California  Code  of  Civil  Procedure,  the  application  of  the  rule  includes 
nominal  parties  to  the  action:  Blood  v.  Fairbanks,  50  Cal.  420;  but  has  no  ap- 
plication to  a  party  claiming  a  family  allowance:  Estate  of  McCausland,  52  Id. 
668.  See  also  Sedgvokk  v.  Sedgvnclc,  52  Id.  336;  aiase  v.  Evoy,  51  Id.  618; 
and  Meyers  v.  Heinstein,  6  West  Coast  Rep.  635. 

Alteration  op  Negotiable  Instrument.  —  The  addition  of  the  words 
"  with  interest "  to  a  promissory  note,  though  made  with  the  consent  of  one 
promisor,  totally  avoids  it  as  to  the  other  promisor:  Fay  v.  Smith,  79  Am. 
Dec.  752.  An  alteration  making  a  bill  or  note  conform  to  an  agreement  be- 
tween the  parties  will  not  vitiate  the  instrument:  Williamson  v.  Smitfi  and 
Walker,  78  Id.  478. 

Inserting  Word  "  and  "  between  Signatures  of  Two  Parties  to  Note 
does  not  change  the  liability  of  the  makers,  and  is  not  such  an  alteration  of 
the  note  as  will  prevent  a  recovery  on  it:  Martin  v.  Oood,  74  Am.  Dec.  546. 

Where  Words  "in  Gold"  were  Inserted  in  Note  after  the  words 
"loaned  money,"  the  legal  liability  of  the  makers  not  being  changed,  the 
■Iteration  is  immaterial:  Bridges  v.  Winters,  97  Am.  Dec.  443. 

Spoliation  of  Instrument  by  Stranger  without  Knowledge  of  Par- 
tus does  not  affect  rights  or  liabilities:  Piersol  v.  Orimes,  95  Am.  Dec.  673. 

Material  Alteration  of  Note  bt  Payee,  tmauthorized  by  maker,  but 
made  without  fraud  and  under  mistake,  avoids  the  note,  but  leaves  the  debt 
unpaid,  and  the  payee  may  recover  it:  Lewis  v.  ScJienck  and  Smith,  90  Am. 
Dec.  631. 

Joint  and  Several  Promissory  Note,  Signed  by  Two  Persons  as 
Makers,  is  materixilly  altered  by  the  addition  of  the  name  of  another  person, 
without  the  knowledge  of  one  of  the  makers,  —  secxs  if  the  note  be  several 
only:  Brownell  t.  Winme,  86  Am.  Dec.  314.  See  also  Vogle  v.  Hipper,  85  Id. 
298.  The  subject  of  alteration  in  writings  is  treated  in  notes  to  Woodioorth 
r.  Bank  of  America,  10  Id.  267-273;  Palmer  v.  Sargent,  25  Am.  Rep.  481-484j 
Blahiy  ▼.  Johnton,  26  Id.  254;  FuUer  v.  Oreen^  64  Id.  600. 


212  Logan  v.  Logan.  [Florida, 

Logan  v.  Logan. 

[22  Florida,  561.] 

Judgment  Creditor — Fraudulent  Conveyance  bt  Debtor. — A  judg- 
ment creditor  has  the  right  to  proceed  to  an  execution  sale  of  property 
which  the  debtor  had  fraudulently  mortgaged,  but  such  right  does  not 
prevent  his  resorting  to  equity  to  cancel  the  fraudulent  instrument. 

■^HEN  Creditor  Seeks  Aid  of  Court  of  Equity  for  the  satisfaction  of  a 
judgment  out  of  the  property  of  his  debtor,  the  title  to  which  property 
has  been  in  the  debtor,  but  has  been  fraudulently  transferred,  it  ia  suffi* 
cient  for  the  creditor  to  show  a  judgment  at  law  and  execution  to  entitle 
him  to  resort  to  equity  to  vacate  such  fraudulent  conveyance. 

Creditor  has  No  Right  of  Action  against  the  parties  procuring  the 
fraudulent  conveyance  to  be  executed,  for  their  conduct  in  so  doing,  but 
he  can  successfully  attack  the  conveyance  for  fraud  apparent  upon  it,  by 
which  his  rights  are  affected. 

Jlvsqal  Acts  Prejudicial  to  Rights  of  Others  are  frauds  on  those 
rights,  although  the  parties  are  innocent  of  any  intention  to  commit  a 
fraud.  If  the  act  is  in  effect  a  fraud  upon  the  creditor,  the  motives  of 
the  parties  are  of  no  consequence. 

Mortgage  of  Stock  of  Goods  in  Trade,  under  which  the  mortgagor  is 
permitted  by  the  mortgagee  to  sell  the  goods  at  his  discretion  in  the 
usual  course  of  his  business,  is  essentially  fraudulent  as  to  creditors  of 
the  mortgagor,  even  though  the  agreement  permitting  such  sales  is  not 
shown  upon  the  face  of  the  mortgage,  but  is  proved  aliunde. 

Bill  in  equity  to  Bet  aside  a  fraudulent  mortgage. 

John  W.  Maloney  for  the  appellant. 

Liddon  and  CarteVy  for  the  appellees. 

By  Court,  McWhorter,  C.  J.  Complainant,  William  H. 
Logan,  filed  his  bill  against  George  A.  Logan,  Slade  and  Eth- 
eredge,  Garrett  and  Sons,  Pollock  &  Co.,  and  the  Eatherly 
Hardware  Company. 

The  bill  alleges  a  recovery  of  a  judgment  by  the  complain- 
ant against  the  defendant  George  A.  Logan,  in  the  circuit 
court  ©f  Jackson  County,  on  the  first  day  of  December,  A.  D. 
1884,  for  $4,889.50,  and  the  issue  of  execution  thereon;  that 
on  the  21st  of  November,  1884,  George  A.  Logan  was  induced 
by  the  fraud  and  deceit  of  the  attorneys  of  Slade  and  Ether- 
edge,  and  by  their  agent,  to  execute  a  mortgage  on  some  real 
estate  in  the  town  of  Greenwood,  and  a  stock  of  merchandise 
then  in  store  at  the  same  place,  of  which  he  was  in  possession, 
to  said  Slade  and  Etheredge,  Garrett  and  Sons,  the  Eatherly 
Hardware  Company,  and  Pollock  &  Co. 

The  bill  alleges  also  that  a  suit  was  pending  in  the  circuit 
court  of  Jackson  County,  by  Slade  and  Etheredge  and  their 


June,  1886.]  Logan  v.  Logan.  213 

co-mortgagees,  against  G.  A.  Logan,  for  the  foreclosure  of  the 
mortgage;  that  such  proceedings  were  had  therein  that  an  in- 
junction had  been  granted  restraining  G.  A.  Logan  from  sell- 
ing the  goods  otherwise  than  for  cash,  and  requiring  him  to 
deposit  the  proceeds  of  such  sale  in  the  registry  of  the  court; 
and  further,  that  on  the  fourteenth  day  of  February,  1885,  the 
judge  appointed  a  receiver  to  take  charge  of  said  stock  of 
goods,  and  to  dispose  of  them  as  directed. 

The  bill  prayed  that  Slade  and  Etheredge  and  their  co- 
mortgagees  might  be  restrained  from  prosecuting  their  suit 
further,  and  that  the  same  be  dismissed,  and  all  steps  taken 
therein  be  vacated  and  nullified.  The  defendants  Slade  and 
Etheredge  filed  an  answer  to  the  bill  for  the  purpose  of  resist- 
ing the  issuance  of  the  injunction  prayed  for,  and  also  a  de- 
murrer to  the  bill  on  several  grounds.  The  judge  refused  the 
injunction,  and  sustained  the  demurrer. 

One  of  the  grounds  of  demurrer  was  that  the  complainant 
had  an  adequate  remedy  at  law.  We  do  not  think  this 
ground  is  tenable.  While  he  had  an  undoubted  right  to  have 
levied  his  execution  at  any  time  before  the  court  had  taken 
the  goods  into  its  custody,  by  the  injunction  commanding 
George  A.  Logan  to  sell  them  and  deposit  the  proceeds  in  the 
registry  of  the  court,  and  by  the  further  appointment  of  a  re- 
ceiver to  take  charge  of  and  sell  them,  and  while  he  might 
still  have  levied  his  execution  by  obtaining  the  permission  of 
the  court,  upon  a  petition  showing  himself  entitled  to  take 
such  a  course,  yet  the  fraud  alleged  in  the  bill  gave  him  also 
a  concurrent  right  to  come  into  a  court  of  equity.  Wait,  in 
his  treatise  on  fraudulent  conveyances  and  creditor's  bill, 
sec.  59,  says:  "A  judgment  creditor  may  proceed  at  law  to  sell 
under  execution  lands  or  property  which  his  debtor  has  fraud- 
ulently alienated,  which  are  subject  to  execution.  The  at- 
tempted transfer  may  be  treated  as  a  nullity,  and  the  property 
subjected  to  seizure  and  sale  upon  execution,  the  same  as 
though  no  covinous  transfer  had  ever  been  made.  The  credi- 
tor, in  such  cases,  may  consider  the  debtor  as  still  the  owner 
of  the  property,  and  is  entitled  to  purchase  it  in  order  to  ob- 
tain satisfaction  of  the  claim  tlie  same  as  if  the  title  were 
unencumbered  by  the  fraudulent  deed  or  transfer":  See  also 
Thomason  v.  Neeley,  50  Miss.  313. 

Further:  "  Fraud  is  one  of  the  recognized  subjects  of  equity 
jurisdiction,  and  is  the  most  ancient  foundation  of  its  power. 
The  existence,  then,  of  the  remedy  at  law  does  not  interfere 


2U  Logan  v.  Logan.  [Florida, 

with  the  right  to  resort  to  a  court  of  equity  for  the  vacation 
of  the  fraudulent  conveyance  as  an  obstacle  in  the  way  of  the 
full  enforcement  of  the  judgment,  and  to  remove  a  cloud  on 
the  title  to  the  property":  Wait  on  Fraudulent  Conveyances, 
sec.  60. 

"  The  suit  in  equity  is  sometimes  said  to  be  an  ancillary  re- 
lief in  aid  of  the  legal  remedy,  as  a  court  of  equity  does  not 
intervene  to  enforce  the  payment  of  debts  ":  Wait  on  Fraudu- 
lent Conveyances,  sec.  60. 

It  is  also  alleged  as  a  ground  of  demurrer  that  the  execu- 
tion of  complainant  had  not  been  returned  to  the  clerk's  oflfice 
unsatisfied.  The  rule  laid  down  by  this  court  in  Robinson  v. 
Springfield  Company,  21  Fla.  203,  was  to  the  efifect  that  this 
was  only  necessary  when  the  title  to  the  property  had  never 
been  in  the  debtor,  but  was  held  by  another  on  a  secret  trust 
for  him,  or  in  case  of  an  equitable  asset  which  could  not  be 
levied  on  by  execution*  at  law.  When  the  creditor  seeks  the 
aid  of  a  court  of  equity  for  the  satisfaction  of  a  judgment  out 
of  the  property  of  his  debtor,  the  title  to  which  property  has 
been  in  the  debtor,  but  has  been  fraudulently  transferred,  it 
is  suflScient  for  the  creditor  to  show  a  judgment  at  law  and 
execution  to  entitle  him  to  resort  to  equity  to  vacate  such 
fraudulent  conveyance. 

The  bill  alleges  that  this  mortgage  was  procured  from  G. 
A.  Logan  by  a  fraud  practiced  on  him  by  the  mortgagees  and 
their  attorneys.  The  defendants  insist,  and  set  it  up  as  one 
of  the  grounds  of  the  demurrer,  that  the  fraud  must  have  been 
participated  in  by  both  of  the  parties,  —  the  mortgagor  and 
the  mortgagee;  and  that  the  fraud  of  the  mortgagees  in  pro- 
curing it  made  the  mortgage  voidable,  and  not  void,  and  only 
at  the  instance  of  G.  A.  Logan;  that  the  creditor  could  not 
avail  himself  of  this  right  of  his  debtor. 

There  is  no  doubt  of  the  correctness  of  this  proposition  as 
insisted  on  by  the  counsel  for  the  appellees.  We  think,  how- 
ever, that  this  doctrine  is  confined  to  the  fraud  practiced  on 
the  debtor  to  induce  him  to  execute  the  mortgage.  The  mort- 
gage being  executed,  and  being  free  from  all  objections  except 
the  fraud  in  procuring  it,  the  principle  urged  by  counsel  would 
apply.  But  this  is  not  all  the  case  made  by  the  bill.  In  ad- 
dition to  the  allegation  that  its  execution  was  procured  by 
fraud,  it  alleges  that  as  to  the  stock  of  merchandise  it  was 
void,  because  **  it  contained  no  provision  for  said  Logan  to 
account  for  the  sales  of  said  property,  but  he  had,  by  the  terms 


June,  1886.]  Logan  v.  Logan.  215 

of  said  deed,  every  right  and  power  to  dispose  of  said  mer- 
chandise to  the  detriment  of  your  orator." 

Of  the  fraud  in  procuring  it  to  be  executed  the  creditor  can- 
not complain,  but  of  the  fraud  inherent  in  the  mortgage  itself 
his  rights  as  a  creditor  are  involved,  and  he  has  such  a  right. 

If  the  creditor  cannot  assail  the  mortgage  for  being  fraudu- 
lently procured,  when  it  is  executed  he  can  assail  it  for  fraud 
apparent  upon  it,  by  which  his  rights  are  affected. 

When  we  come  to  consider  the  mortgage  itself,  Ive  do  so  on 
its  own  terms,  and  not  with  reference  to  what  influences  were 
exercised  to  induce  the  debtor  to  execute  it.  In  thus  consid- 
ering it,  if  it  in  effect  is  a  fraud  upon  the  right  of  the  creditor, 
the  motives  of  the  parties  are  of  no  consequence.  The  decis- 
ions on  this  point  are  numerous:  See  Robinson  v.  Elliott,  22 
Wall.  513.  "By  the  term  'fraud'  the  legal  intent  and  effect 
of  the  acts  complained  of  is  meant.  The  law  has  a  standard 
for  measuring  the  intent  of  parties,  and  declares  an  illegal  act 
prejudicial  to  the  rights  of  others  a  fraud  on  such  rights,  al- 
though the  parties  deny  all  intention  of  committing  a  fraud": 
Kirby  v.  Ingersoll,  1  Harr.  (Mich.)  172.  And  this  principle  was 
reaflBrmed  by  the  supreme  court  of  Michigan,  1  Doug.  477, 
which  found  the  transaction  fraudulent  without  *'  imputing  to 
the  highly  respectable  parties  in  this  case  a  premeditated  or 
wicked  intention  to  injure  the  interest  of  complainant."  See 
also  Graham  v.  Chapman,  12  Com.  B.  85;  Wheelden  v.  Wilsonj 
44  Me.  11;  Grover  v.  Wakeman,  11  Wend.  187;  25  Am.  Dec. 
624.  In  this  case,  the  court  says  the  statute  of  frauds  refers 
to  a  legal,  and  not  to  a  moral,  intent.  Its  legal  intent  is  not 
to  be  gathered  from  the  motives  of  the  parties,  but  from  the 
legal  effect  of  their  acts.  If  the  allegation  in  the  bill  above 
quoted,  that  the  mortgagor  had  by  the  terms  of  said  mortgage 
every  right  and  power  to  dispose  of  the  merchandise,  to  the 
detriment  of  complainant,  be  true,  and  the  demurrer  admits 
its  truth,  we  are  of  the  opinion  that  the  mortgage  was  void  as 
to  the  creditors  of  G.  A.  Logan. 

Mr.  Pearce,  in  a  treatise  on  mortgages  of  merchandise,  pages 
1  and  2,  asks  these  questions:  1.  Is  a  mortgage  of  a  stock  of 
goods  in  trade,  under  which  the  mortgagor  is  permitted  by  the 
mortgagee  to  sell  the  goods  at  his  discretion  in  the  usual  course 
of  his  business,  essentially  fraudulent  as  to  creditors  of  the 
mortgagor  ?  2.  If  it  be,  is  it  still  so  in  case  the  agreement  or 
understanding  between  the  mortgagee  and  mortgagor,  permit* 


216  Logan  v.  Logan.  [Florida, 

ting  such  sales,  is  not  shown  upon  the  face  of  the  mortgage, 
but  is  proven  by  evidence  aliunde  f 

He  says  further  "that  a  candid  and  impartial  investigation 
finds  both  these  questions  answered  in  the  aflBrmative  by  the 
great  weight  of  American  authority,  considering  the  decisions 
not  only  as  precedents,  but  as  enunciations  of  principle."  See 
also  Robinson  v,  Elliott,  22  Wall.  513,  and  the  numerous  cases 
cited  in  Pearce  on  Mortgages  of  Merchandise. 

As  to  the  jeal  estate  mentioned  in  the  mortgage,  or  any  other 
property  included  in  it,  the  possession  of  which  was  to  remain 
with  the  mortgagor,  and  which  he  had  no  right  to  sell  at  his 
discretion,  there  being  no  objection  to  the  mortgage  of  such 
property  except  its  being  procured  by  fraud,  and  that,  as  we 
have  seen,  not  being  a  fraud  available  to  complainant,  the 
mortgage  was  valid,  unless  the  fraud  as  to  a  part  of  the  prop- 
erty vitiated  the  whole, — a  point  which  we  do  not  decide. 

The  decree  of  the  court  sustaining  the  demurrer  is  reversed, 
and  the  cause  remanded  for  further  proceedings  not  inconsis- 
tent with  this  opinion. 


Wheee  Straijger  to  Execution  is  in  Possession  op  Peopertt,  Claim- 
IKO  It  as  his  Own,  by  virtue  of  a  transfer  to  him  from  the  debtor,  the 
officer  must  produce,  not  only  the  writ,  but  the  judgment  which  authorizes 
its  issuance;  and  a  sale  of  property  by  a  debtor  cannot  be  attacked  by  a 
creditor  merely  because  he  is  a  creditor,  but  only  when  he  has  a  judgment 
establishing  his  debt,  and  an  execution  issued  thereon,  or  has  some  process 
regularly  issued,  as  in  the  case  of  attachment,  authorizing  a  seizure  of  the 
property:  Bickerataffv.  Dovb,  79  Am.  Dec.  204. 

When  Fraud  does  not  Appear  on  Face  of  Conveyance,  either  the 
insolvent  condition  of  the  grantor  at  the  time  of  his  making  the  deed,  or  an 
actual  intent  to  defraud,  will  bring  the  conveyance  under  the  operation  of 
the  statutes  against  fraudulent  conveyances:  Filley  v.  Register,  77  Am.  Dec 
522. 

Judgment  Creditor  may  Rely  on  Lien  of  his  Judgment  on  real  prop- 
erty, instead  of  resorting  to  equity,  and  a  purchaser  under  an  execution  sale 
will  have  the  right  to  impeach  the  debtor's  conveyance  as  fraudulent:  Chau- 
tauque  County  Bank  v.  Rialey,  75  Am.  Dec.  347. 

Judgment  Creditor  has  Right  to  have  Fraudulent  Conveyance 
Removed  and  title  cleared  up  by  decree  in  equity  before  selling  the  property 
under  his  execution:  Cook  v.  Johnson,  72  Am.  Dec.  381. 

Judgment  Creditor  cannot  Maintain  Action  to  Set  Aside  Assign- 
ment AS  Fraudulent  until  after  recovery  of  judgment  and  return  of  execu- 
tion unsatisfied:  Gates  v.  Andrews,  97  Am,  Dec.  764. 

Attaching  Creditor  with  Constructive  Notice  not  Released  from 
Obligation  to  Make  Further  Inquiry,  because  he  believed  the  mortgage 
to  have  been  withheld  from  record  to  defraud  creditors:  Allen  v.  McCaUa,  96 
Am.  Dec  56. 


June,  1886.]  Burrows  v.  Mickler.  217 

Creditors  not  Parties  to  Proceedings  to  Set  Aside  Conveyance  as 
Fraudulent  cannot  avail  themselves  of  the  adjudication:  Huntington  v. 
JeweU,  95  Am.  Dec.  788. 

As  TO  WHEN  Voluntary  Conveyance  will  be  Held  Fraudulent,  see 
Bedfield  v.  Buck,  95  Am.  Dec.  241;  Stewart  v.  Sogers,  95  Id.  794. 

ATTEatPTED  Fraudulent  Conveyance  of  All  his  Property  by  Debtor 
ia  a  waiver  of  right  to  have  personal  property  levied  on  before  real  estate; 
StancUl  V.  Branch,  93  Am.  Dec.  592. 


Burrows  v.  Mickler. 

[22  Florida,  572.] 
Right  of  Appeal  is  not  Waived  by  Payment  of  the  amount  of  the  exe- 
cution  to  the  sheriff,  to  avoid  a  levy. 

Motion  by  defendant  in  error  to  dismiss  the  writ  of  error. 

Doggett  and  BudcTnan,  for  the  motion. 

M.  C.  Jordan,  contra. 

By  Court,  Raney,  J.  Mickler,  the  defendant  in  error,  moves 
to  dismiss  the  writ  of  error.  He  had  a  money  judgment  against 
Burrows,  and  the  writ  of  fi.Ja.  was  in  the  hands  of  the  sheriflf. 
The  real  grounds  of  the  motion  are,  that  the  judgment  and 
executions  have  been  satisfied  and  voluntarily  paid  by  Bur- 
rows, and  that  this  was  done  before  any  supersedeas  issued  or 
was  served.  The  motion  is  supported  by  the  following  return 
or  certificate  made  by  the  sheriff  on  the  execution:  "I  hereby 
certify  that  I  received  the  within  execution  on  the  fifteenth 
day  of  August,  1885;  executed  the  within  writ  in  the  fol- 
lowing manner:  On  the  twenty-eighth  day  of  January,  1886, 
the  defendant,  to  avoid  levy  hereunder,  paid  to  the  sheriff 
1232.04,  being  the  amount  of  the  within  judgment,  costs,  and 
interest  to  the  fifteenth  day  of  February,  1886;  said  amount 
«o  paid  was  paid  under  the  following  understanding  and  with 
the  following  agreement:  That  in  the  event  a  supersedeas 
should  issue  on  or  before  the  fifteenth  day  of  February,  1886, 
in  the  within  entitled  cause,  the  amount  so  paid  should  be 
returned  to  said  defendant,  and  in  the  event  no  supersedeas 
should  issue  on  or  before  the  fifteenth  day  of  February,  1886, 
said  amount  to  be  applied  to  the  full  satisfaction  of  this  exe- 
cution. No  supersedeas  having  issued  on  or  before  February 
15,  1886,  80  much  of  said  amount  as  satisfied  said  judgment 
as  to  the  judgment,  interest,  and  costs  was  paid  to  Doggett 


218  Burrows  V.  Mickler.  [Florida, 

and  Buckman,  attorneys  for  plaintiff  herein;  that  afterwards 
defendant's  attorney  gave  notice  to  the  sheriff  of  the  issuance 
of  a  supersedeas,  since  which  time  the  sheriff  has  done  nothing 
in  the  premises." 

It  is  apparent  that  the  purpose  of  Burrows,  as  shown  by  the 
above  agreement  between  him  and  the  sheriff,  was,  that  the 
money  put  into  the  sheriff's  hands  by  him  should  not  operate 
as  a  payment  of  the  execution  until  the  sixteenth  day  of  Feb- 
ruary, 1886,  nor  at  all,  if  the  supersedeas  should  be  obtained 
on  or  before  the  fifteenth  day  of  such  month.  There  is  no 
agreement  either  in  form  or  effect  not  to  take  a  writ  of  error. 
The  writ  lies  without  a  supersedeas. 

The  case  before  us  is  in  effect  that  the  defendant  in  judg- 
ment and  execution  has  paid  the  amount  necessary  to  satisfy 
them.  Counsel  for  the  motion  has  shown  no  authority  to  sup- 
port the  idea  that  such  payment  by  a  defendant  in  execution 
amounts  to  a  waiver  of  the  right  to  have  the  judgment  re- 
viewed by  appeal  or  writ  of  error. 

Authorities  cited  by  counsel  opposing  the  motion,  as  well  as 
all  other  decisions  which  we  have  found  in  our  investigation, 
are  to  the  effect  that  such  payment  does  not  waive  this  right: 
See  County  Commissioners  v.  Johnson  &  Co.,  21  Fla.  577; 
Eicheson  v.  Ryan,  14  111.  74;  56  Am.  Dec.  493;  Erwin  v. 
Lowry,  7  How.  172;  O'Hara  v.  McConnell,  93  U.  S.  150; 
Gregg  v.  Forsyth,  2  Wall.  56;  Close  v.  Stuart,  4  Wend.  95; 
Mayor  etc.  v.  Biker,  38  N.  J.  L.  225;  20  Am.  Rep.  386;  Scott  v. 
Conover,  10  N.  J.  L.  61;  Randolph  v.  Bayles,  2  Id.  49;  Anony- 
mous,  3  Id.  469.  In  County  Commissioners  v.  Johnston  &  Co., 
21  Fla.  577,  we  held  that  the  performance  by  respondents 
of  the  command  of  a  peremptory  writ  of  mandamus  was  not 
a  bar  to  an  appeal  from  the  judgment  awarding  the  writ.  In 
Putnam  v.  Churchill,  4  Mass.  516,  it  was  held  even  that  an 
agreement  not  to  appeal  from  a  judgment  did  not  preclude 
the  taking  of  a  writ  of  error.  In  Richeson  v.  Ryan,  supra,  it 
is  said  Richeson  "  was  at  liberty  to  pay  off  the  judgment  at 
once,  and  thereby  prevent  the  accumulation  of  interests  and 
costs.  By  so  doing,  he  did  not  waive  his  right  to  remove  the 
record  into  this  court  for  the  purpose  of  having  the  validity 
of  the  proceedings  tested  and  determined." 

The  motion  is  denied. 

Pabtt  Paying  Judgment  against  Himself  before  Exectttion  Issued 
does  not  thereby  waive  his  right  of  testing  its  validity  in  the  appellate 
court:  Bicfieson  v.  Byan,  56  Am.  Dec.  493. 


June,  1886.]  O'Brien  v.  Vaill.  219 

O'Brien  v.  Yaill. 

[22  Floeida,  627.J 

Law  Imposes  on  Ixxkeeper  Extraordinary  Liabilitt  for  the  protec- 
tion of  the  baggage  of  his  guest.  He  can  avoid  it  only  on  the  grounds 
of  the  loss  having  been  occasioned  by  the  act  of  God,  the  public  enemy, 
the  misconduct  of  the  guest,  or  of  the  friend  he  brings  with  him. 

Innkeeper's  Liability  as  Such  Ceases  when  his  guest  pays  his  bill  and 
departs,  announcing  that  he  would  be  gone  a  few  days,  but  would  leave 
his  baggage  to  be  cared  for  till  his  return.  The  innkeeper's  subsequent 
duty  is  that  of  a  gratuitous  bailee  of  such  baggage,  liable  only  for  gross 
negligence. 

Action  against  innkeeper  for  damages  for  loss  of  baggage. 
Verdict  for  the  plaintiff.     Defendant  appealed. 

C.  P.  and  J.  C.  Cooper,  for  the  appellant. 
Fleming  and  Daniel,  for  the  appellee. 

By  Court,  McWhorter,  C.  J.  On  the  26th  of  March,  A.  D. 
1885,  plaintiff,  O'Brien,  went  to  the  hotel  of  the  defendant, 
E.  E.  Vaill,  in  the  city  of  St.  Augustine,  and  stopped  there  a» 
a  guest.  The  next  day  plaintiff  paid  his  bill  to  the  clerk  in 
the  office  of  the  hotel,  and  told  him  he  would  be  gone  for  a 
few  days,  but  would  leave  his  baggage,  which  consisted  of  two 
trunks  and  a  valise,  until  his  return,  and  which  he  requested 
the  clerk  to  take  care  of  for  him.  Plaintiff  left  his  baggage 
in  his  room,  locked  the  door,  and  gave  the  key  to  the  clerk. 
Plaintiff  told  the  clerk  that  on  his  return  he  would  board  with 
him.  On  April  2d  plaintiff  returned,  and  again  became  a 
guest  of  the  hotel.  The  plaintiff's  baggage  had  been  removed 
by  the  proprietor  to  the  main  hall  of  the  hotel.  On  inquiring 
for  his  baggage,  it  was  found  that  one  of  the  trunks  had  been 
stolen. 

It  was  in  evidence  that  the  front  door  opened  into  the  office, 
and  there  was  no  entrance  into  the  hall  besides  the  entrance 
through  the  office;  that  when  the  house  was  not  closed  there 
was  always  some  person  in  charge  of  the  office,  and  when  the 
hotel  doors  were  closed  there  was  always  a  watchman  on 
duty.  A  former  servant  of  the  hotel  was  arrested  for  the 
theft,  and  confessing  the  crime,  told  the  officer  where  they 
could  find  the  trunk.  Two  hasps  had  been  broken,  and  the 
most  of  the  contents  carried  away.  Vaill,  the  proprietor,  re- 
fusing to  pay  O'Brien  for  his  damage  and  loss,  the  latter 
brought  suit. 


220  O'Brien  v.  Vaill.  [Florida, 

The  questions  presented  upon  these  facts  are, — 1.  Was  Vaill, 
O'Brien  having  paid  his  bill  and  departed  from  the  house,  but 
leaving  his  baggage,  saying  he  would  return,  liable  to  O'Brien 
under  the  law  regulating  the  liability  of  an  innkeeper  to  his 
guest  for  the  loss  of  such  baggage.  Attorney  for  appellant 
has  called  to  our  attention  the  case  of  Adams  v.  Clem,  41  Ga. 
€5;  5  Am.  Rep.  524.  In  this  case,  Mrs.  Clem  was  the  guest 
of  the  innkeeper,  Adams;  her  trunk  was  carried  to  her  room, 
and  was  marked  with  her  name;  she  paid  her  bill,  saying  that 
a  gentleman,  whom  she  pointed  out,  would  call  in  ten  minutes 
for  it,  and  bring  it  to  her  in  the  country,  to  which  Adams 
assented.  She  left  the  inn  on  Monday,  and  no  one  called  for 
the  trunk  until  Friday,  when  it  was  found  to  be  lost.  The 
court  held  the  innkeeper  responsible. 

The  appellant  also  cites  the  case  of  McDonald  v.  Edgerton, 
6  Barb.  560.  This  decision  is  partly  based  on  the  case  of 
Grinnell  v.  Cook,  3  Hill,  485;  38  Am.  Dec.  663.  We  think  the 
court  misconstrued  Justice  Bronson  in  the  case  of  Grinnell  v. 
Cook,  supra.  In  that  case.  Judge  Bronson  drew  a  well-founded 
distinction  in  respect  of  the  innkeeper's  liability  for  property 
left  by  the  guest,  as  to  whether  the  innkeeper  was  to  receive 
compensation  for  keeping  the  property  during  the  absence  of 
the  guest.  The  guest  had  left  a  horse  which  required  feed 
and  attention,  for  which  the  innkeeper  had  a  right  to  charge  a 
reasonable  compensation.  In  the  case  of  McDonald  v.  Edger- 
ton,  supra,  the  plaintifif  left  behind  his  coat,  and  there  was  no 
compensation  agreed  on  or  expected  for  keeping  it.  Leaving 
property  for  which  a  compensation  for  keeping  was  to  be  paid 
continued  the  relation  of  innkeeper  and  guest  so  far  as  that 
property  was  concerned. 

We  think  the  current  of  authority  and  the  weight  of  reason 
is  opposed  to  the  conclusion  reached  by  the  supreme  court 
of  Georgia,  and  the  supreme  court  of  New  York  in  5  Barbour, 
supra. 

The  law  imposes  on  an  innkeeper  an  extraordinary  liability 
for  the  protection  of  the  baggage  of  his  guest.  He  can  avoid 
it  only  on  the  grounds  of  the  loss  being  occasioned  by  the  act 
of  God,  the  public  enemy,  the  misconduct  of  the  guest,  or  the 
friend  he  brings  with  him.  We  can  think  of  no  other  reason 
for  the  imposition  of  this  liability  upon  the  innkeeper  than  the 
profit  he  receives  from  entertaining  his  guest.  When  the  trav- 
eler ceases  to  be  his  guest,  and  the  innkeeper  ceases  to  derive 
a  profit  for  his  entertainment,  the  relation  of  innkeeper  and 


June,  1886.]  O'Brien  v.  Vaill.  221 

guest  have  ceased  as  such,  and,  as  a  consequence,  their  rela- 
tive liabilities. 

O'Brien,  when  he  paid  his  bill  and  left  the  hotel,  put  an  end 
to  the  relation  of  guest  to  the  hotel-keeper:  See  Miller  v.  Pee- 
ples,  60  Miss.  819;  45  Am.  Rep.  423 j  Grinnell  v.  Cook,  3  Hill, 
485;  38  Am.  Dec.  663. 

The  expectation  to  become  a  guest  again  at  some  other  time 
did  not  continue  the  relation  of  innkeeper  and  guest. 

The  next  question  is,  What  was  the  relation  of  the  parties 
after  the  cessation  of  the  relation  of  innkeeper  and  guest,  as 
Bhown  by  the  evidence?  We  think  it  was  that  of  bailor  and 
bailee,  and  that  the  defendant  was  a  gratuitous  bailee.  The 
statement  of  the  appellant  that  he  expected  to  return  to  and 
board  at  the  hotel  could  not  be  considered  as  a  consideration 
for  taking  care  of  the  baggage.  A  gratuitous  bailee  is  liable 
only  for  gross  negligence.  There  is  nothing  proved  in  the  case 
that  will  justify  us  in  the  conclusion  that  defendant  was 
guilty  of  such  negligence  in  opposition  to  the  finding  of  the 
referee. 

The  judgment  is  affirmed. 

Atter  Gcest  HA3  GiVEN  UP  HIS  RooM  AT  Inn,  and  closed  his  connection 
therewith,  the  landlord  ia  liable  only  as  a  common  bailee  for  the  guest's  bag- 
gage left  behind  at  the  inn:  McDaniels  v.  Robinson,  62  Am.  Dec.  574,  and  67 
Id.  720;  Miller  v.  Peeples,  45  Am.  Rep.  423,  and  note. 

Innkeeper  is  Bound  to  Keep  Safely  and  Well  Property  of  Guests, 
and  in  case  of  loss  or  injury,  can  absolve  himself  from  liability  only  by  show- 
ing that  the  loss  or  injury  was  without  his  fault:  Johnson  v.  Ricliardson,  63 
Am.  Dec.  369;  Dunljier  v.  Day,  41  Am.  Rep.  772,  and  note. 

Innkeepers  ARE  Liable,  without  Regard  to  Actual  Fault  or  Neglect, 
for  loss  of  baggage  of  guest,  custody  of  baggage  being  assumed  as  part  of 
service:  Petliyrew  v,  Bamum^  69  Am.  Rep.  212. 

Innkeeper,  Definition  of:  HovUli  v.  Franklin,  73  Am.  Rep.  218. 

Innkeeper  may  Exculpate  Himself  by  showing  that  loss  did  not  happen 
by  any  neglect  of  his:  Laird  v.  EicJiokl,  71  Am.  Dec.  323.  Relation  of  inn- 
keeper and  guest,  when  exists:  Hancock  v.  Rand,  46  Am.  Rep.  112,  and  note, 
lunkeeper  is  not  answerable  where  property  ia  destroyed  without  his  negli- 
gence  by  accidental  fire:  Cutler  t.  Bonney,  18  Id.  127,  and  note  130-136. 


222  Western  Union  Tel.  Co.  v.  Hyer  Bros.     [Florida, 

Western   Union   Telegraph  Company  v.  Hyer 

Brothers. 

[22  Florida,  687.] 

Telegraph  Company,  Liability  of — Measttre  of  Damaobs. — A  tele- 
graph  company  ia  liable  for  damage  resulting  naturally,  and  in  the  usual 
course  of  business,  from  its  failure  to  send  or  deliver  a  dispatch  correctly 
and  promptly,  without  requiring  the  sender  to  disclose  its  importance  to 
the  company  or  its  agent. 

Cipher  Dispatch.  —  It  is  of  no  consequence  whether  the  dispatch  is  in 
plain  English  or  in  cipher,  provided  such  cipher  is  written  in  the  letters 
of  the  English  alphabet. 

Action  against  telegraph  company  for  damages  occasioned 
by  delay  in  delivering  cipher  message.  The  jury  found  a 
verdict  for  the  plaintiff.     Defendant  appealed. 

W.  A.  Blount,  for  the  appellant. 

S.  R.  Mallory,  Jr.,  for  the  appellee. 

By  Court,  McWhorter,  C.  J.  Suit  was  brought  by  Hyer 
Brothers,  in  the  circuit  court  of  Escambia  County,  against  the 
Western  Union  Telegraph  Company,  for  damages  for  non- 
delivery of  a  cablegram  sent  to  them  at  Pensacola  by  their 
correspondent  and  agent  at  Barbadoes. 

The  proof  showed  that  the  plaintijBFs  were  merchants  and 
ship-brokers  at  Pensacola,  and  that  on  the  twelfth  day  of  Sep- 
tember, 1883,  they  received  a  cablegram  from  their  corre- 
spondent and  agent  at  Barbadoes,  as  follows:  "Prelate, 
Tellespont,  lambent,  speculum,  divan,  extol,  pulpit,  rabidy, 
Greenock,  preferred,  sluggard,  excluded,  stevedore,  'scam,' 
'  slam,'  "  which,  being  translated,  meant:  "  We  grant  you  re- 
fusal for  24  hours.  Tellespont,  556  6-100  reg.,  half  hewn, 
balance  deals,  £6.15,  full  freight  on  beam  fillings.  U.  K., 
Greenock  preferred,  £20  gratuity,  stevedore  excluded.  Com- 
missions in  thirds."  Hyer  Brothers  answered  the  cablegram 
as  follows:  "To 'Laurie,  Barbadoes.  Wagon,  extant,  knight, 
sluggard,  polygon,"  which,  being  translated,  meant:  "For 
United  Kingdom,  full  cargo  sawn  timber  at  £6  10s.  per  stan- 
dard, and  £20  gratuity,  usual  charter." 

The  agent  at  Barbadoes  answered  this  dispatch,  and  the 
answer  was  received  at  the  office  of  the  Western  Union  Tele- 
graph Company  in  Pensacola,  September  14th.     It  contained 


June,  1886.]    Western  Union  Tel.  Co.  v.  Hyer  Bros.      223 

but  one  word:  "  Punctual."  By  the  cipher  code  used  by 
Hyer  Brothers  and  their  correspondent  it  meant:  "  We  have 
closed  the  vessel  as  per  your  telegram."  It  was  never  deliv- 
ered to  Hyer  Brothers.  The  oflFer  of  H.  B.  for  the  charter  of 
the  vessel  was  based  on  an  offer  made  to  them  by  A.  M.  Mc- 
Millan, of  Pensacola. 

Not  receiving  an  answer  to  their  dispatch,  and  thinking 
their  offer  was  not  accepted,  they  told  McMillan  that" the  offer 
was  declined,  and  he  secured  another  vessel.  On  October  2d 
the  vessel  arrived  at  Pensacola,  bringing  a  letter  from  their 
agent  at  Barbadoes  containing  a  copy  of  the  telegram,  which 
had  been  sent  as  aforesaid  to  H.  B.,  but  not  delivered;  also  a 
charter-party  which  their  agent  at  Barbadoes  had  signed  for 
them  in  accordance  with  their  offer.  They  had  to  recharter 
the  vessel  at  a  loss. 

The  court  instructed  the  jury  to  find  their  verdict  as  a  spe- 
cial verdict,  upon  which,  if  in  favor  of  the  plaintiff,  it  should 
enter  judgment  for  nominal  damages,  or  for  the  amount  of 
damages  as  found  by  the  jury,  as  it  might  thereafter  be  ad- 
vised. The  jury  returned  a  verdict  for  plaintiffs  for  $618.90, 
and  the  said  court,  after  being  advised,  entered  judgment  in 
favor  of  the  plaintiffs  and  against  the  defendant  for  said  sum. 

The  defendant  alleges  here  as  error  that  the  court  erred  in 
rendering  judgment  for  other  than  nominal  damages. 

This  question  has  never  before  been  presented  for  adjudica- 
tion in  this  state. 

The  courts  in  New  York,  Minnesota,  Maryland,  Wisconsin, 
Massachusetts,  Nevada,  and  Maine,  following  the  case  of 
Hadley  v.  Baxendale,  9  Ex.  341,  hold  that  only  nominal  dam- 
ages can  be  recovered  from  the  company  undertaking  to  send 
the  telegram,  unless  the  sender  should  inform  the  operator  of 
the  special  circumstances  which  constituted  its  importance, 
and  the  need  of  its  correct  and  prompt  transmission. 

The  case  of  Hadley  v.  Baxendale,  supra,  was  this:  Tlie  plain- 
tiffs, owners  of  a  steam-mill  at  Gloucester,  had  a  shaft  broken, 
and  desiring  to  have  another  made,  they  left  the  broken  shaft 
with  the  defendant,  a  common  carrier,  to  be  carried  to  a  foun- 
dry at  Greenwich  to  serve  as  a  model  for  a  new  one.  At  the 
time  of  making  the  contract,  the  defendant's  clerk  was  in- 
formed that  the  mill  was  stopped,  and  that  the  plaintiffs 
desired  the  broken  shaft  to  be  sent  immediately,  but  were  not 
informed  of  the   special  purpose  for  which  the  broken  shaft 


224  Western  Union  Tel.  Co.  v.  Hyer  Bros.    [Florida, 

was  to  be  forwarded.  The  carriers  told  the  proprietors  of  the 
mill  that  they  could  deliver  the  shaft  at  Greenv/ich  at  a  cer- 
tain time.  They  failed  to  deliver  it  within  the  time,  and  a 
delay  was  caused  in  the  making  of  a  new  one,  and  a  conse- 
quent delay  in  starting  the  mill.  The  court  said:  "  We  think 
the  proper  rule  in  such  a  case  as  the  present  is  this:  Where 
two  parties  have  made  a  contract  which  one  of  them  has 
broken,  the  damages  which  the  other  party  ought  to  receive  in 
respect  of  such  breach  of  contract  should  be  either  such  as 
may  fairly  and  substantially  be  considered  as  arising  natu- 
rally, i.  e.,  according  to  the  usual  course  of  things,  from  such 
breach  of  contract  itself,  or  such  as  may  reasonably  be  sup- 
posed to  have  been  in  the  contemplation  of  both  parties  at  the 
time  they  made  the  contract,  as  the  probable  result  of  the 
breach  of  it.  Now,  if  the  special  circumstances  under  which 
the  contract  was  actually  made  were  communicated  by  the 
plaintiff  to  the  defendant,  and  thus  known  to  both  parties,  the 
damages  resulting  from  the  breach  of  such  a  contract  which 
they  would  reasonably  contemplate  would  be  the  amount  of 
injury  which  would  ordinarily  follow  from  a  breach  of  contract 
under  these  special  circumstances  so  known  and  communi- 
cated. But,  on  the  other  hand,  if  those  special  circumstances 
were  wholly  unknown  to  the  party  breaking  the  contract,  he, 
at  the  most,  could  only  be  supposed  to  have  had  in  his  contem- 
plation the  amount  of  injury  which  would  arise  generally,  and 
in  the  great  multitude  of  cases,  not  affected  by  any  special 
circumstances,  for  such  a  breach  of  contract.  For  had  the 
special  circumstances  been  known,  the  parties  might  have  ex- 
pressly provided  for  the  breach  of  contract  by  special  terms  as 
to  the  damage  in  that  case,  and  of  this  advantage  it  would 
be  very  unjust  to  deprive  them.  The  above  principles  are 
those  by  which  we  think  the  jury  ought  to  be  guided  in  esti- 
mating the  damages  arising  out  of  any  breach  of  contract." 

All  the  cases  above  referred  to  rely  upon  the  authority  of  this 
case  of  Hadley  v.  Baxendale,  9  Ex.  341,  and  are  decided  upon 
the  theory  that  the  principles  of  law  regulating  the  conduct  of 
common  carriers  applies  equally  to  the  transmission  of  mes- 
sages by  the  electric  telegraph  system.  The  business  of  one  is 
to  transport  from  one  locality  to  another  some  tangible  object 
of  weight  and  dimension.  Experience  does  not  suggest,  in 
such  a  transaction,  any  other  liability  than  compensation  for 
its  value,  if  lost  or  destroyed  in  the  transportation,  or  such 


June,  1886.]    Western  Union  Tel.  Co.  v.  Hyer  Bros.      225 

damages  for  its  delay  as  the  object  itself  might  suggest.  The 
business  of  the  other  is  the  transmission,  from  one  to  another 
and  from  one  locality  to  another,  of  information  or  intelligence, 
— nothing  in  itself,  but  as  the  basis  and  groundwork  that  is  to 
influence  the  conduct  of  others,  is  in  this  respect  of  the  very 
first  importance.  One  is  limited  to  the  transportation  of  tan- 
gible things;  the  other  to  the  transmission  of  the  intangible. 
There  is  no  similarity  in  the  services  to  be  performed,  in  the 
nature  of  the  things  to  be  transported  or  transmitted,  or  the 
purposes  to  be  efifected,  and  as  a  consequence,  none  as  to 
the  measure  of  damages  for  failure  to  perform  their  respec- 
tive agreements. 

The  decision  in  Hadley  v.  Baxendale,  9  Ex.  341,  was  proper, 
and  suited  to  the  facts  before  the  court;  but  an  attempt  to  extend 
it  to  such  cases  as  this  would  be  productive  of  great  injustice. 
The  telegraphic  invention  has  made  the  system  the  means  of 
communication  between  all  civilized  countries  on  the  globe 
for  a  large  part  of  the  transactions  and  communications  that 
prior  to  its  invention  were  conducted  by  writing  or  by  special 
messenger.  No  man  can  enumerate  the  vast  number  of  sub- 
jects of  treaty  and  intercourse  that  the  complicated  relations 
of  mankind  require  its  agency  to  accomplish.  It  can  safely 
be  said,  however,  that  the  larger  part  of  all  messages  sent 
are  of  a  commercial  or  business  nature,  which  suggest  value; 
the  requirements  of  friendship  or  pleasure  can  await  other 
means  of  less  celerity  and  less  expense.  If  this  be  true,  why 
should  the  law  assume  that  as  a  rule  all  messages  sent  over 
it  are  unimportant,  and  that  an  important  one  is  an  exception, 
of  which  the  operator  is  to  be  informed?  Whatever  may  be 
the  rules  of  this  particular  defendant  company,  if  they  have 
any,  there  are  none  set  forth  in  the  record;  whether,  there- 
fore, its  rules  are  reasonable,  or  whether  it  can  limit  its  liability 
by  proper  rules  when  shown  to  have  been  known  to  its  patron, 
is  in  no  sense  involved  in  this  opinion. 

The  common  carrier  charges  different  rates  of  freight  for 
different  articles,  according  to  their  bulk  and  value  and  their 
respective  risks  of  transportation,  and  provides  different  meth- 
ods for  the  transportation  of  each.  It  is  not  shown  here  that 
the  defendant  company  had  any  scale  of  prices  which  were 
higher  or  lower  as  the  importance  of  the  dispatch  was  great 
or  small.  It  cannot  be  said,  then,  that  for  this  reason  the 
operator  should  be  informed  of  its  importance,  when  it  made 

Am.  St.  Rep.,  Vol.  L  — 16 


226  Western  Union  Tel.  Co.  v.  Hyeb  Bros.     [Florida, 

no  difference  in  the  charge  of  transmission.  It  is  not  shown 
that  if  its  importance  had  been  disclosed  to  the  operator  that 
he  was  required  by  the  rules  of  the  company  to  send  the  mes- 
sage out  of  the  order  in  which  it  came  to  the  oflSce,  with  refer- 
ence to  other  messages  awaiting  transmission,  that  he  was 
to  use  any  extra  degree  of  skill,  any  diflferent  method  or 
agency  for  sending  it,  from  the  time,  the  skill  used,  the 
agencies  employed,  or  the  compensation  demanded,  for  send- 
ing an  unimportant  dispatch,  or  that  it  would  aid  the  operator 
in  its  transmission.  For  what  reason,  then,  could  he  demand 
information  that  was  in  no  way  whatever  to  affect  his  manner 
of  action,  or  impose  on  him  any  additional  obligation?  It 
could  only  operate  on  him  persuasively  to  perform  a  duty  for 
which  he  had  been  paid  the  price  he  demanded,  which  in  con- 
sideration thereof  he  had  agreed  to  perform,  and  which  the 
law  in  consideration  of  his  promise  and  the  reception  of  the 
consideration  therefor  had  already  enjoined  on  him.  The  sys- 
tem of  telegraphy,  founded  as, it  is  on  a  comparatively  recent 
discovery  of  the  practical  capabilities  of  a  well-known  ele- 
mentary force,  whose  existence  had  hitherto  made  itself 
known  more  by  its  power  of  destruction  and  the  dread  of  its 
visitations  than  by  manifesting  utility  for  the  varied  purposes 
of  man,  and  having  for  its  mission  the  almost  instantaneous 
communication  of  ideas  between  persons  widely  separated,  as 
to  distance,  unlike  any  industry  or  enterprise  that  had  ever 
been  in  use  before,  may  justly  be  considered  and  treated  as 
standing  alone, — a  system  unto  itself. 

The  nearest  approach  to  any  similar  enterprise  is  the  sys- 
tem of  carrying  letters  by  mail,  but  as  this  has  been  taken  in 
charge  and  performed  by  the  United  States  government  since 
its  inception,  and  its  acts  or  omissions  cannot  be  made  subjects 
of  judicial  inquiry,  we  can  find  no  precedent  in  this  country 
to  aid  in  the  solution  of  the  questions  that  are  dividing  the 
courts.  The  same  may  be  said  as  to  want  of  precedents  in 
that  country  to  which  we  have  so  often  and  so  successfully 
looked  for  assistance  in  other  disputed  questions. 

Prior  to  the  reign  of  James  I.,  when  the  post  was  first  estab- 
lished in  England,  letters  were  sent  by  a  messenger  specially 
hired  for  the  purpose,  or  intrusted  to  the  honor  of  some  way- 
farer who  chanced  to  be  going  to  the  place  where  the  letter  was 
desired  to  be  sent.  Butchers  and  drovers  whose  business  of 
buying  cattle  caused  them  to  visit  various  parts  of  the  king- 


June,  1886.]    Western  Union  Tel.  Co.  v.  Hyer  Bros.      227 

dom  were  the  principal  carriers  of  letters,  as  late  as  the  fif- 
teenth century.  Any  attempt  to  apply  to  such  a  novel  system 
legal  principles  adapted  to  pursuits  and  occupations  which 
are  dissimilar  in  their  nature,  and  designed  for  the  accom- 
plishment of  different  purposes,  must  naturally  result  in  fail- 
ure and  confusion.  A  recognition  by  the  courts  of  this  truth, 
and  an  application  from  time  to  time  to  its  conduct  of  such 
rules  and  regulations  as  common  sense  may  suggest,  as  fitted 
to  its  peculiar  nature  and  purposes,  without  reference  to  sys- 
tems that  are  not  similar  and  principles  that  are  not  analogous, 
is  the  only  method  preserving  the  law  regulating  its  operation 
from  contradictions  and  perplexities.  Similar  difficulties  have 
previously  arisen  in  other  branches  of  the  law,  when  from  their 
novelty,  and  a  failure  of  applicable  precedents,  the  courts, 
probably  from  fear  of  the  hazard  of  framing  new  rules,  or 
misled  by  a  seeming  analogy,  have  attempted  to  apply  to  such 
legal  novelties  long-used  principles  of  law,  and  to  analogize 
the  new  to  some  old  system  with  which  they  were  familiar. 
This  disposition  of  the  courts,  or  it  may  be  said  of  the  human 
mind,  for  it  exists  equally  elsewhere,  is  very  forcibly  and  con- 
clusively shown  in  the  effort,  when  the  tenure  of  partners  in 
the  joint  property  of  the  partnership  was  a  new  question  in 
the  English  courts,  to  liken  it  to  a  joint  tenancy  or  a  tenancy 
in  common.  This  was  the  view,  says  Mr.  Parsons,  that  was 
taken  in  all  the  early  books.  They  all  had  the  element  of 
joint  ownership  of  property,  but  in  all  other  respects  were  dif- 
ferent and  independent,  and  the  law  for  each  should  be  sought 
for  in  itself.  When  this  species  of  joint  interest  and  owner- 
ship came  under  the  cognizance  of  the  courts  of  England,  it 
was  new  to  them,  and  new  to  the  law  of  England,  and  it  was 
perhaps  unavoidable  that  they  who  administered  the  law 
should  have  sought  to  bring  this  new  topic  within  the  rules 
and  principles  of  these  kinds  of  joint  ownership  which  were 
well  known:  Parsons  on  Partnership,  pp.  2,  3.  Much  of  the 
confusion,  says  the  same  learned  author,  existing  to-day  in 
suits  and  levies  of  a  private  creditor  against  a  partner  person- 
ally indebted  to  him  is  due  to  the  inability  of  the  law  of  part- 
nership to  clear  itself  of  the  last  remaining  influences  of  the 
old  notion  that  partnership  was  but  one  form  of  tenancy  in 
common:  Id.  352,  353. 

The  supreme  court  of  Alabama,  in  the  case  of  Daughtery  v. 
American  Union  Telegraph  Company,  at  its  December  term, 


228  Western  Union  Tel.  Co.  v.  Hyer  Bros.     [Florida, 

1883,  reported  in  the  Alabama  Law  Journal,  May,  1884,  75 
Ala.  168,  51  Am.  Rep.  435,  and  the  supreme  court  of  Cali- 
fornia, in  the  case  of  Hart  v.  Western  Union  Telegraph  Company, 
April  term,  1885,  66  Cal.  579,  56  Am.  Rep.  119,  have  laid  down 
a  doctrine  more  harmonious  with  justice,  and  more  applica- 
ble to  the  peculiar  characteristics  belonging  to  the  system  of 
telegraphy.  They  hold  that  a  telegraph  company  is  liable  for 
damage  resulting  naturally,  and  in  the  usual  course  of  busi- 
ness, from  its  failure  to  send  or  deliver  a  dispatch  correctly 
and  promptly,  without  requiring  the  sender  to  disclose  its  im- 
portance to  the  company  or  its  agent. 

It  is  of  no  consequence  whether  the  dispatch  is  in  plain  Eng- 
lish or  in  cipher,  provided  such  cipher  is  written  in  the  letters 
of  the  English  alphabet. 

The  judgment  of  the  circuit  court  is  aflBrmed. 


Raney,  J.,  dissented,  and  based  his  views  upon  the  judgment  of  the 
court  of  exchequer  in  the  case  of  Hadky  v.  Baxendale,  9  Ex.  341,  deoided 
in  the  year  1854,  when  the  electric  telegraph  was  in  its  earliest  infancy. 
The  facts  disclosed  in  that  action  are  stated  in  the  opinion  of  the  court  in 
the  principal  case.  The  plaintiff  was  allowed  special  damages  occasioned  by 
the  delay  in  delivering  a  mill-shaft.  A  rule  nisi  was  obtained  for  a  new  trial, 
and  after  argument  before  the  court  in  bank  was  made  absolute,  on  the 
ground  that  the  damages  were  too  remote,  and  that  the  special  circum- 
stances under  which  the  contract  was  actually  made  were  not  communicated 
by  the  plaintiffs  to  the  defendant.  "  For,"  the  court  says,  "had  the  special 
circumstances  been  known,  the  parties  might  have  especially  provided  for 
the  breach  of  contract,  by  special  terms  as  to  the  damages  in  that  case;  and 
of  this  advantage  it  would  be  very  unjust  to  deprive  them."  In  applying  the 
principles  laid  down  to  the  case,  the  court  says:  "We  find  that  the  only  cir- 
cumstances here  communicated  by  the  plaintiff  to  the  defendant  at  the  time 
the  contract  was  made  were,  that  the  article  to  be  carried  was  the  broken 
shaft  of  a  mill,  and  that  the  plaintiff  was  the  miller  of  that  milL  But  how 
do  these  circumstances  show  reasonably  that  the  profits  of  the  mill  must  be 
stopped  by  an  unreasonable  delay  in  the  delivery  of  the  broken  shaft  by  the 
carrier  to  the  third  person?  ....  Here,  it  is  true  that  the  shaft  was  ac- 
tually sent  back  to  serve  as  a  model  for  a  new  one,  and  that  the  want  of  a 
new  one  was  the  only  cause  of  the  stoppage  of  the  mill,  and  that  the  loss  of 
profits  really  arose  from  not  sending  down  the  new  shaft  in  proper  time,  and 
that  this  arose  from  the  delay  in  delivering  the  broken  one  to  serve  as  a 
model.  But  it  is  obvious  that  in  the  great  multitude  of  cases  of  millers  send- 
ing off  broken  shafts  to  third  persons  by  a  carrier,  under  ordinary  circum- 
stances, such  consequences  would  not  in  all  probability  have  occurred,  and 
these  special  circumstances  here  were  never  communicated  by  the  plaintiff  to 

the  defendant The  judge  ought  therefore  to  have  told  the  jury  that, 

upon  the  facts  then  before  them,  they  ought  not  to  take  the  loss  of  profits 
into  consideration  at  all  in  estimating  the  damages. " 

The  decision  in  Hadley  v.  Baxerulale  overrules  that  in  the  case  of  Borro- 


June,  1886.]    Western  Union  Tel.  Co.  v.  Hyer  Bros.      229 

daiU  V.  Brunton,  8  Tannt.  535,  where  damages  of  a  similarly  remote  charac- 
ter were  allowed,  so  that  the  decision  of  the  majority  of  the  court  in  the 
principal  case  would  seem  to  be  rather  the  revival  of  an  old  rule  than  the 
creation  of  a  new  one.  The  principle  that  damages  may  be  recovered  for 
loss  of  profits  had  been  recognized  in  many  English  cases  before  Hadley  v. 
Baxendale,  among  which  may  be  cited  Kettle  v.  Hunt,  Bull.  N.  P.  78  a; 
Brandt  v.  Bowlhy,  2  Barn.  &  Adol.  932;  Ward  v.  Smith,  11  Price,  19;  Waters 
V.  Toioera,  8  Ex.  401;  and  Bodley  v.  Reynolds,  8  Q.  B.  779.  Mr.  Justice 
Raney,  in  his  dissenting  opinion,  has  followed  the  view  throwing  on  the 
sender  of  the  telegram  the  burden  of  communicating  its  subject-matter  and 
importance  to  the  telegraph  company  before  making  it  liable  in  damages  for 
delay  in  transmittal  of  the  message  (citing  a  number  of  authorities  in  sup- 
port), thus  giving  it  an  opportunity  of  making  a  special  charge  for,  and 
taking  special  care  in,  the  transmission  of  the  dispatch,  rather  than  the  view 
which  would  impose  upon  the  telegraph  company  the  ontia  of  requiring  the 
sender  to  make  the  necessary  communications  as  to  the  dispatch,  and  pay  an 
increased  tariff,  if  he  wish  to  preserve  the  right  to  recover  substantial  dam- 
ages in  case  of  any  delay  in  the  receipt  of  the  dispatch.  The  rule  of  the 
common  law  would  seem  to  be  that  where  a  party  sustains  a  loss  by  reason 
of  a  breach  of  contract,  he  is,  so  far  as  money  can  do  it,  to  be  placed  in  the 
same  situation  with  respect  to  daihages  as  if  the  contract  had  been  per* 
formed:  Robinson  v.  Harman,  1  Ex.  855. 

In  the  case  of  Hart  v.  Western  Union  Tel.  Co.,  66  Cal.  579  (cited  in  the 
controlling  opinion  in  the  principal  case),  the  judges  differed  in  opinion;  and 
it  is  the  opinion  of  the  minority  which  is  in  accord  with  the  opinion  of  the 
majority  in  the  principal  case. 

The  case  of  Dawjldery  v.  American  Union  Tel.  Co.,  75  Ala.  1(58,  also  criti- 
cises the  ruling  in  Hadley  v,  Baxendale,  and  seeks  to  limit  it  to  the  particular 
facts  of  that  case.  The  decision  in  Daughtery  v.  American  Union  Tel.  Co., 
mtpra,  is  a  unanimous  one,  and  contains  a  very  copious  collection  of  the  au« 
thorities. 

Telegraph  Company  i3  Liable,  not  only  for  Cost  of  Sending  Mes- 
SAQB,  but  also  for  the  natural  and  proximate  damages  resulting  from  the 
breach  of  contract:  Parks  v.  Alta  California  Telegraph  Co.,  73  Am.  Dec.  589. 
This  is  a  California  case,  decided  in  1859,  when  telegraph  companies  were 
held  in  that  state  to  be  common  carriers;  but  since  1874,  by  section  2168  of 
the  California  Civil  Code,  such  companies  are  not  common  carriers,  but  are 
required  by  the  statute  to  "use' great  care  and  diligence  in  the  transmission 
and  delivery  of  messages." 

Damages  Occasioned  by  Delay  in  Transmittino  a  dispatch,  and  which 
cansed  the  sender  to  lose  priority  of  an  attachment,  are  not  too  remote: 
Parka  v.  Alta  California  Telegraph  Co.,  73  Am.  Dec.  689. 

Telegraph  Company  must  Send  Very  Message  Prescribed;  and  for  ' 
a  failure  to  do  so  is  liable  in  damages  to  the  receiver  of  the  message,  and 
•och  liability  is  not  altered  by  the  fact  that  the  sender  did  not  insure  or 
have  the  message  repeated:  New  York  and  Washington  Printing  Telegraph  Co. 
T.  Dryburg,  78  Am.  Dec.  338. 

CoKDmoN  LiMiriNo  Responsibility,  unles.s  Message  Repeated,  is  just 
and  reasonable;  and  a  sender,  with  knowledge  of  such  condition,  is  to  be  re- 
garded as  having  sent  the  message  at  his  own  risk:  Camp  v.  Wutem  Union 
Telegraph  Co.,  11  Am.  Dec.  461. 


230  Western  Union  Tel.  Co.  v.  Hyer  Bros.    [Florida. 

Telegraph  Cojipant  not  Liable  for  Loss  Conseqtteijt  upon  failtire  to 
send  cipher  message,  unless  purport  of  message  communicated  to  company: 
United  States  Telegraph  Co.  v.  Oilderaleve,  96  Am.  Dec.  619. 

As  TO  WHEN  TelEORAFH  COMPANY  IS  GUILTT  OF  GROSS  NeOLIOENCB  AND 

Liable  in  Damages  for  failure  to  transmit  message,  and  measure  of  dam- 
ages:  United  States  Telegraph  Co.  v.  Wenger,  93  Am.  Dec.  751. 

Second  Company  cannot  Avail  Itself  of  Conditions  in  Blank  of 
First  Company  limiting  liability:  Squire  v.  Western  Union  Telegraph  Co.,  93 
Am.  Dec  157. 

Special  Limitation  of  Liabilitt  will  not  protect  company  from  conse- 
quences of  gross  negligence:  Waun  v.  Western  Union  Telegraph  Co.,  90  Am. 
Dec.  395. 

Company  Boitnd  to  Transmit  Message  in  Order  of  Time  of  Receipt; 
but  private  dispatches  must  give  way  to  public  communications:  Western 
Union  Telegraph  Co.  v.  Ward,  85  Am.  Dec.  462. 

Telegraph  Company  is  Responsible  for  Any  Loss  or  Injttry  which 
results  from  its  failure  to  transmit  message:  Bimey  v.  New  York  and  Wash- 
mgton  Printing  Telegraph  Co.,  81  Am.  Dec.  607. 


CASES 


JS  THE 


SUPREME    COURT 


KANSAS. 


Mitchell  v.  Aten. 

rs?  Kansas,  83.] 

SmvicB  BY  Publication  C!omplkted  Prior  to  Date  o»  Jctdomekt  give« 
jorisdiction. 

Jttsoment  Prematttrelt  Ei^tered,  as  where  the  summons  has  been  served 
bat  the  time  allowed  by  law  to  plead  has  not  expired,  is  irregular  merely, 
and  not  void. 

Irrzoular  Judgment  cannot  be  Collaterally  Attacked,  though  it  may 
be  set  aside  on  motion  or  by  some  appropriate  appellate  proceeding. 

Priority  in  Recording  Conveyances  of  Real  Estate  protects  only  inno- 
cent and  bona  Jide  purchasers  and  holders. 

AOZNT  WILL   NOT  IN   EQUITY   BE    PERMITTED  TO   PROFIT  by   his   negligenc« 

toward  his  principal. 

AOENT  WILL  NOT  BE  PROTECTED  AS  AGAINST  HIS  PRINCIPAL  who  is  Seeking  tO 

foreclose  a  mortgage  on  land  which  such  agent  has  purchased  from  an 
innocent  holder  of  a  deed  therefor,  when  the  claim  to  priority  under 
•ach  deed  is  based  on  the  negligence  of  the  agent  in  delaying  the  record- 
ing  of  such  mortgage. 

Action  to  quiet  title  to  real  estate.    Judgment  for  plaintiff. 

A.  J.  Utley,  for  the  plaintiff  in  error. 

/.  W.  Lord,  for  the  defendant  in  error. 

By  Court,  Horton,  C.  J.  The  facts  in  this  case  are  substan- 
tially as  follows:  On  November  23,  1858,  William  J.  Turner 
was  the  owner  of  the  real  estate  in  controversy;  upon  that 
day  he  executed  a  mortgage  upon  the  real  estate  to  Henry 
Aten,  to  secure  the  payment  of  two  hundred  dollars,  which 
mortgage  was  recorded  on  December  2,  1858;  upon  the  same 

sn 


232  Mitchell  v.  Aten.  l^Kansa/j, 

day  he  conveyed  to  John  N.  Jefferson  the  real  estate  by  war- 
ranty deed,  which  was  recorded  November  29,  1858.  Henry 
Aten  assigned  his  mortgage  to  C.  ^I.  Aten,  who  brought  an 
action  to  foreclose  the  same,  and  recovered  judgment  thereon 
October  13,  1862.  In  that  action  William  J.  Turner  and 
Henry  Aten  were  made  defendants.  Under  a  sale  upon  the 
foreclosure  of  the  mortgage,  C,  M.  Aten  obtained  a  sherifif 's  deed 
to  the  real  estate,  on  December  12,  1863.  David  T.  Mitchell 
obtained  a  warranty  deed  of  the  real  estate  from  John  N. 
Jefferson,  on  March  28,  1884.  C.  M.  Aten  filed  his  petition 
against  David  T.  Mitchell  for  the  purpose  of  quieting  title  in 
himself  to  said  real  estate.  Upon  the  trial  the  court  rendered 
judgment  for  the  plaintiff,  as  prayed  for.  Mitchell  excepted, 
and  brings  the  case  here. 

The  foreclosure  proceedings  in  the  -action  of  C.  M.  Aten 
against  William  J.  Turner  et  al.  were  received  in  evidence, 
without  objection.  After  the  argument  of  the  case  the  plaintiff 
moved  to  strike  from  the  evidence  this  record,  for  the  reason 
that  it  was  not  signed  by  the  district  judge.  This  motion  was 
sustained,  and  this  ruling  is  complained  of.  The  record  was 
offered  by  Mitchell  to  prove  that  the  judgment  of  foreclosure 
under  which  Aten  claimed  title  was  absolutely  void.  This 
upon  the  ground  that  the  judgment  was  taken  by  default,  on 
October  13, 1862,  when  defendants  had  twenty  days  after  Octo- 
ber 25,  1862,  in  which  to  appear  and  answer. 

It  is  not  necessary  for  us  to  pass  upon  the  question  whether 
the  district  court  erred  in  refusing  to  consider  as  evidence  the 
record  of  the  foreclosure  case  of  A  ten  v.  Turner  et  al.  Turner 
was  notified  by  publication  to  appear  and  answer  the  petition 
on  or  before  twenty  days  after  October  25,  1862.  The  service 
of  publication  was  completed  prior  to  October  13th,  the  date  of 
the  judgment.  Judgment  was  not  rendered,  therefore,  until 
several  days  after  service.  Jurisdiction  having  been  obtained, 
the  fact  that  the  judgment  was  rendered  sooner  than  it  should 
have  been  does  not  make  the  judgment  void:  a  judgment  thus 
rendered  is  irregular  only.  It  might  have  been  set  aside  by 
motion,  or  upon  proceedings  in  error,  but  the  judgment  is  not 
vulnerable  to  a  collateral  attack:  Code,  sec.  569;  Freeman  on 
Judgments,  sees.  119,  126,  135;  Town  of  Lyons  v.  Cooledge,  89 
111.  529. 

The  next  complaint  is,  that  the  findings  of  fact  of  the  trial 
court  do  not  support  the  conclusions  of  law.  It  is  said  that 
as  the  mortgage  and  the  deed  were  both  executed  and  acknowl- 


July,  1887.]  Mitchell  v.  Aten.  233 

edged  November  23,  1858,  and  as  there  is  no  reference  in  the 
mortgage  to  the  deed,  or  in  the  deed  to  the  mortgage,  it  must 
be  presumed,  in  the  absence  of  proof  to  the  contrary,  that  the 
grantees  acted  in  good  faith;  and  as  it  appears  that  the  deed 
was  recorded  November  29,  1858,  and  the  mortgage  December 
2,  1858,  the  prior  record  of  the  deed  to  Jefferson  gave  him  the 
superior  equity,  and  therefore  that  the  mortgage  never  had  any 
validity  as  to  Jefferson,  or  to  Mitchell  claiming  under  him.  If 
we  were  to  presume  that  the  mortgage  and  deed  were  delivered 
at  the  same  time,  it  would  necessarily  follow  that  the  grantees 
knew  of  the  existence  of  the  two  instruments,  and  it  would  be 
a  natural  conclusion  to  say  that  Turner  gave  the  mortgage 
first,  and  then  sold  the  land  to  Jefferson  with  the  understand- 
ing that  he  should  pay  the  mortgage,  as  his  warranty  would 
oblige  him  to  do.  This  view  would  be  in  favor  of  holding  that 
Turner  acted  in  good  faith  to  all  parties.  But  aside  from  this, 
the  finding  of  the  trial  court  that  Mitchell  was  the  agent  of 
Aten  in  taking  the  mortgage  from  Turner,  November  23, 1858, 
and  was  also  his  agent  in  recording  the  same,  fully  sustains 
the  judgment  rendered.  The  statute  relating  to  the  filing  and 
recording  of  conveyances  of  real  estate  protects  no  one  but  in- 
nocent and  bona  fide  purchasers  and  holders.  If  it  be  true  that 
Jefferson  had  the  superior  equity  on  account  of  the  priority  of 
the  record  of  his  deed,  he  obtained  this  equity  by  the  negligence 
or  bad  faith  of  Mitchell.  It  was  the  duty  of  Mitchell,  as  the 
agent  of  Aten,  to  have  filed  for  record  the  mortgage  within  a 
reasonable  time  after  it  came  into  his  possession.  If  Mitchell 
had  done  this,  the  mortgage  would  have  been  recorded  within 
a  day  or  two  after  November  23,  1858.  It  was  not  recorded, 
through  the  fault  of  Mitchell,  until  December  2,  1858,  three 
days  after  the  deed  was  of  record.  Mitchell  cannot  be  per- 
mitted in  a  court  of  equity  to  profit  by  his  own  wrong  against 
his  principal.  It  is  a  sound  principle  that  he  who  prevents  a 
thing  from  being  done  shall  not  avail  himself  of  the  non- 
performance ho  has  occasioned. 

We  are  not  passing  upon  the  rights  or  equities  of  Jefferson; 
therefore  it  is  immaterial  whether  he  had  the  superior  equity 
in  the  real  estate,  or  not.  Mitchell,  although  he  derived  his 
title  from  Jefferson,  cannot  be  protected  by  the  priority  of  the 
record,  because  such  priority  is  founded  upon  his  own  negli- 
gence or  wrong.  He  should  suffer  for  this  negligence  or  bad 
faith,  and  not  his  principal. 

The  judgment  of  the  district  court  will  be  aflSrmed. 


234  Bates  v.  Wiggin.  ,        [Kansas, 

JuDOMiNT  MAY  BE  ATTACKED  CoLLATEKALLT,  where  the  return  of  ser- 
vice of  summoiM,  as  appears  from  the  record,  was  InsufBcient  to  confer  juris- 
diction, and  there  was  no  finding  of  the  court  from  which  a  proper  service 
or  appearance  could  be  inferred:  Clark  v.  Tliompson,  93  Am.  Dec.  457,  and 
note  461. 

Jurisdiction  of  Person  of  Defendant  may  be  obtained  by  8er\'ice  by 
publication:  Hahn  v.  Kelly,  94  Am.  Dec.  742.  Presumption  in  favor  of  juris- 
diction, when  judgments  of  courts  of  record  are  attacked  collaterally:  Id., 
and  extended  note  765. 


Bates  v.  Wiggix. 

f37  Kansas,  44.] 

Oral  Mortgage.  —  Verbal  agreement  by  one  with  his  surety  that  property 
purchased  with  money  raised  by  note  signed  by  surety  shall  become 
the  property  of  such  surety  until  such  note  is  paid,  is,  in  effect,  an  oral 
mortgage. 

Oral  Mortgage  of  Chattels  not  Accompanied  by  their  Delivery  is 
valid  as  between  the  parties. 

Receiver  Takes  Property  Subject  to  Existing  Equities  and  Liens. 

Surety  may,  after  Maturity  of  Debt,  for  the  payment  of  which  he  is 
responsible,  replevy  goods  mortgaged  to  secure  him  as  surety,  and  may 
foreclose  such  mortgage,  although  he  has  not  actually  paid  such  debt. 

Replevin  by  Frank  A.  Bates  to  recover  of  J.  A.  Wiggin, 
personally,  and  as  receiver  of  H.  B.  Clark,  certain  personal 
property,  consisting  of  hay  and  grain,  amounting  in  talue  to 
$1,439.75.  H.  B.  Clark,  in  the  fall  of  1884,  for  the  purpose 
of  raising  money  with  which  to  buy  feed  for  certain  live-stock 
then  in  his  possession,  made  an  arrangement  with  said  Bates  to 
become  his  surety  on  certain  notes.  The  money  to  be  obtained 
from  such  notes  was  to  be  used  by  said  Clark  in  the  purchase 
of  feed,  which,  when  bought,  should  become  and  remain  the 
property  of  said  Bates  until  such  notes  should  be  fully  paid. 
Notes  to  the  amount  of  two  thousand  five  hundred  dollars  were 
given  as  agreed,  with  the  proceeds  of  which  feed  was  purchased, 
a  portion  of  which  was  by  said  Clark  fed  out  to  the  said  stock 
until  January  5,  1885,  when  J.  A.  Wiggin,  as  receiver  in  an 
action  brought  against  Clark  by  one  0.  A.  Burton,  took  pos- 
session of  both  the  feed  remaining  and  the  stock,  which  pos- 
session he  still  retains.  At  the  time  the  notes  were  given, 
both  Bates  and  Clark  were  insolvent.  Defendant  demurred 
to  plaintiflf's  evidence.  The  court  sustained  the  demurrer, 
and  directed  the  jury  to  render  a  verdict  in  favor  of  defend- 
ant. Judgment  for  defendant.  New  trial  denied.  Plaintiff 
appeals. 


July,  1887.]  Bates  v.  Wiggin.  235 

Lloyd  and  Evans,  for  plaintiflf  in  error. 

/.  B.  Johnson  and  J.  D.  McFarland,  for  defendant  in  error. 

By  Court,  Holt,  C.  The  first  question  that  presents  itself 
is,  Was  the  contract  between  Bates  and  Clark  a  conditional 
Bale,  or  was  it  a  mortgage  on  the  property  in  controversy? 
The  testimony  is  not  uniform  concerning  the  agreement. 
Some  of  the  witnesses  testify  that  the  title  should  pass,  and 
the  property  become  absolutely  the  property  of  Bates  at  once. 
They  all  agree  that  the  title  to  the  property  should  be  in 
Bates  until  the  notes  were  paid  to  the  bank,  but  there  is  some 
testimony  showing  that  the  title  to  the  property  remaining 
should  revert  to  Clark  upon  the  payment  of  the  notes  at 
once,  and  without  any  formal  transfer.  The  testimony  shows 
that  Clark  fed  his  stock  out  of  a  part  of  the  property  pur- 
chased. The  writer  of  this  opinion  is  inclined  to  believe  that 
the  agreement  constituted  a  mortgage,  yet  there  was  testimony 
enough  introduced  tending  to  show  that  it  was  a  conditional 
sale,  so  that  it  might  have  been  a  proper  question  for  the  jury- 
to  determine  whether  the  transaction  was  a  mortgage  or  a 
sale:  Goodwin  v.  Kelly,  42  Barb.  194.  If  it  had  been  a  sale 
of  the  property,  then  certainly  Bates,  the  owner  of  the  same, 
could  maintain  his  action  for  the*  possession  of  it. 

The  defendant  contends  that  if  it  was  an  oral  mortgage 
it  would  be  void  without  an  actual  delivery  of  the  property  to 
Bates.  We  do  not  believe  that  claim  is  tenable.  There  is  a 
distinction  between  mortgages  and  pledges,  but  there  is  no  dis- 
tinction nor  reason  for  a  distinction  between  oral  and  written 
mortgages  in  this  respect.  There  is  no  provision  in  our  stat- 
utes, as  there  is  in  some  states,  that  the  sale  of  personal  prop- 
erty of  a  certain  value,  unaccompanied  by  delivery,  shall  be 
void  unless  a  memorandum  of  the  sale  in  writing  be  made  and 
signed  by  one  of  the  parties  thereto.  There  is  no  question  of 
purchaser  or  creditor  arising  in  this  action  under  the  evidence 
brought  here.  It  is  simply  a  controversy  between  Bates  and 
the  receiver  of  H.  B.  Clark.  Such  receiver  took  the  property 
of  Clark  subject  to  all  existing  equities  and  liens,  and  has  no 
greater  rights  than  Clark  himself  would  have  against  Bates, 
and  can  interpose  no  defense  that  Clark  could  not:  In  re  North 
American  Gutta  Percha  Co.,  17  How.  Pr.  549;  Lorch  v.  Aultmany 
75  Ind.  162;  High  on  Receivers,  sec.  138. 

The  testimony  in  this  action  tends  to  show  that  this  trans- 
action was  entered  into  in  good  faith,  and  that  the  conditional 


286  Bates  v.  Wiogin.  [Kansas, 

sale  or  mortgage,  whichever  it  may  be,  was  given  upon  a  suf- 
ficient consideration;  and  when  inquired  into  between  the 
parties  themselves,  or  between  parties  having  no  greater  or 
different  rights,  we  know  of  no  rule,  or  reason  for  a  rule,  that 
would  make  delivery  indispensable  as  between  them  any  more 
than  under  a  written  mortgage:  Jones  on  Chattel  Mortgages, 
eec.  2;  Morrow  v.  Turney's  Adm'r,  35  Ala.  131.  If  a  sale  of 
chattels,  not  in  writing,  is  valid  without  delivery,  we  know  of 
no  reason  why  an  oral  mortgage  should  be  void  between  the 
parties  thereto,  without  delivery. 

In  the  view  we  take  of  this  case,  it  is  of  very  little  impor- 
tance whether  the  transaction  was  a  conditional  sale  or  a  mort- 
gage. If  it  was  a  mortgage,  it  was  a  transaction  to  secure 
$2,500;  and  the  statement  of  the  values  in  the  affidavit  of  the 
plaintiff  shows  the  total  value  of  the  property  claimed  to  be 
only  $1,439.75,  much  less  than  the  amount  sought  to  be 
secured. 

It  is  contended  that  if  this  transaction  is  a  mortgage,  the 
plaintiff  could  not  maintain  an  action  of  replevin  for  this 
property  until  he  had  paid  the  notes,  or  some  part  thereof, 
upon  which  he  was  surety.  Whatever  the  general  rule  may 
be,  we  believe  where  the  surety  has  a  mortgage  on  the  prop- 
erty of  his  principal  to  secure  him  for  signing  his  principal's 
notes,  after  the  maturity  of  the  debt,  he  is  not  bound  to  wait 
until  he  has  actually  paid  as  surety,  but  may  have  the  mort- 
gage foreclosed  at  once;  and  where  the  principal  is  insolvent, 
he  may  retain  any  funds  in  his  hands  to  apply  to  the  discharge 
of  his  liability. 

The  purpose  of  this  contract  between  Bates  and  Clark  was 
to  hold  Bates  harmless  against  loss  or  damage  by  reason  of 
his  signing  Clark's  notes  at  the  bank  as  surety.  At  the  com- 
mencement of  this  action  he  was  legally  liable  on  the  notes, 
and  was  entitled  to  obtain  possession  of  the  property  given 
him  to  save  him  harmless,  because  he  signed  the  same:  Brandt 
on  Suretyship  and  Guaranty,  sec.  193;  Baylies  on  Sureties 
and  Guarantors,  352;  De  Cottes  v.  Jeffers,  7  Fla.  284;  Succes- 
eion  of  Montgomery,  2  La.  Ann.  469;  Daniel  v.  Joyner,  3  Ired. 
Eq.  513. 

It  is  recommended  that  the  judgment  of  the  court  below  be 
reversed. 


MoRTOAOE  Lien  upon  Real   Estate  cannot  be  Created  by  Aobek- 
MBNT  Which  is  Wholly  Verbal:  Portej-  v.  Muller,  53  Cal.  C77. 


July,  1887.]  Stone  v.  French.  237 

Parol  Mortgage.  —  When  it  was  intended  that  a  vendor's  lien  shall  be- 
come a  mortgage  on  property  sold,  equity  will  so  regard  it,  although  there 
has  been  no  technical  mortgage:   Whiting  v.  Eichelberger,  16  Iowa,  422. 

Equttt  will  Enforce  Parol  Mortgage.  Where  it  is  agreed  that  a 
lien  shall  exist  on  real  or  personal  property,  equity  will  decree  that  such 
agreement,  as  against  the  party  himself,  or  one  taking  under  him  with  notice, 
raises  a  trust:   Whiting  v.  EicJielberger,  16  Iowa,  422. 

Agreement  to  Execute  Mortgage^  —  Money  was  advanced  to  defendant 
apon  an  agreement  to  execute  a  mortgage  therefor,  with  an  immediate  power 
of  sale.  Defendant,  after  having  received  the  money,  refused  to  give  the 
security.  The  court  ordered  that  he  should  be  held  to  the  letter  of  his  agree- 
ment: Herman  v.  Hodges,  L.  R.  18  Eq.  18. 

Oral  Mortgages.  —  Oral  agreements,  the  general  substance  of  which  is, 
that  the  creditor  may  retain  or  sell  certain  personal  property  of  the  debtor, 
and  apply  its  proceeds  to  the  satisfaction  of  a  debt,  may  be  very  properly 
styled  oral  or  verbal  mortgages,  and  their  validity  and  binding  force  as  be- 
tween the  parties  thereto  seem  to  be  very  generally  conceded:  Rees  v.  Coats, 
65  Ala.  256;  Loyd  v.  Ctirrin,  3  Humph.  462;  Couchman  v.  WriglU,  8  Neb.  1 ; 
Bank  of  Rochester  v.  Jones,  4  N.  Y.  497;  55  Am.  Dec.  290;  Bradwell  v. 
Roberts,  66  Barb.  433;  AckUy  v.  Finch,  7  Cow.  290.  No  particular  or  set 
form  of  words  is  essential  to  the  creation  of  such  mortgage:  Olover  v.  ifc- 
Oiloray,  63  Ala.  508.  In  all  those  states  where  a  change  or  delivery  of  pos- 
session is  essential  to  the  existence  of  a  valid  written  mortgage,  it  must  neces- 
sarily be  an  accompaniment  of  a  valid  oral  mortgage  whenever  it  is  sought 
to  be  enforced  against  any  person  other  than  the  original  mortgagor,  and 
those  acquiring  under  him,  either  by  voluntary  transfer  or  with  notice  of  the 
existence  of  such  mortgage:  Ceas  v.  Bramley,  18  Hun,  187.  When  possession 
is  delivered  under  an  oral  mortgage  of  personalty,  the  legal  t^tle  vests  in  the 
mortgagee:  McTaggart  r.  Rose,  14  Ind.  230;  Furgeson  v.  Union  Furnace 
Co.,  9  Wend.  345.  If  the  mortgagee  has  never  had  the  possession  of  chattels 
orally  mortgaged  to  him,  he  may,  even  in  those  states  where  he  is  not 
regarded  as  vested  with  the  legal  title,  maintain  an  action  on  the  case  against 
one  who,  having  notice  of  such  mortgage,  converts  such  chattels  to  his  own 
use:  Rees  v.  Coats,  65  Ala.  256. 


Stone  v.  French. 

rST  Kansas,  145.J 
DiuvEBT.  —  Deed  of  real  estate,  acknowledged  by  grantor,  containing  th« 

words  "signed,  scaled,  and  delivered  in  the  presence  of  S.  Michaels," 

placed  in  an  envelope  in  grantor's  table-drawer,  with  directions  as  to 

recording  indorsed  on  envelope,  is  neither  delivered  to  the  intended 

grantee  nor  to  any  one  else,  and  it  conveys  no  title. 
IimwTioN  to  Make  Future  Delivery  o»  Deed  and  Conveyance  oi 

Land  at  Death  of  grantor  is  not  a  delivery  of  such  deed,  and  passes  no 

interest  in  the  land. 
Died  neituer  Delivered  mor  Recorded  by  grantor  during  his  lifetime 

is  void. 
Void  Instruments  cannot  be  Rewjrdkd  legally. 
Rkcordino  Void  Deed  Gives  It  No  Validity,  and  a  bona  fide  purchaser, 

luider  such  void  deed,  acquires  uu  title,  and  can  convey  none. 


238  Stone  v.  French.  [Kansas, 

Action  for  partition  of  land,  brought  by  Luther  C.  French 
against  John  Stone  and  others. 

Biick  and  Feighan^  and  Cox  and  Stratton,  for  the  plaintiff  in 
error. 

Hutchings  and  Keplinger,  for  the  defendants  in  error. 

By  Court,  Valentine,  J.  This  was  an  action  for  the  parti- 
tion of  two  hundred  acres  of  land  in  Neosho  County,  brought 
in  the  district  court  of  that  county  on  October  16,  1884,  by 
Luther  C.  French  against  John  Stone  and  others.  The  case 
was  tried  before  the  court  and  a  jury,  and  judgment  was  ren- 
dered for  the  partition  of  the  property,  giving  to  the  plaintiff, 
Luther  C.  French,  one  seventh  thereof,  and  to  the  defendant 
John  Stone  one  seventh  thereof,  and  to  the  other  defendants 
the  remainder  thereof.  To  reverse  this  judgment,  the  defend- 
ant John  Stone  brings  the  case  to  this  court,  making  the 
plaintiff,  Luther  C.  French,  and  all  the  defendants  except 
himself,  defendants  in  error. 

It  appears  that  on  March  1,  1878,  and  prior  thereto,  the 
property  in  controversy  belonged  to  Francis  B.  French,  although 
he  had  not  yet  entirely  paid  for  the  same.  At  that  time  he 
formed  the  intention  of  giving  this  land  at  his  death  to  his 
brother,  Dudley  S.  French,  unless  he  should  sell  the  same 
during  his  lifetime.  On  March  1,  1878,  he  wrote  a  letter  to 
his  brother,  Dudley  S.  French,  in  which  he  stated,  among 
other  things,  the  following:  "  In  case  I  should  drop  off,  you 
can  take  possession  of  the  land,  and  do  with  it  as  you  please. 
When  I  have  paid  the  land  out,  if  not  sold,  I  will  make  a  deed 
to  it  to  you,  inclose  it  in  an  envelope,  direct  it  to  you,  to  be 
mailed  in  event  of  death,  which  would  make  it  sure  to  you 
without  expense  or  trouble." 

Nearly  one  year  afterward,  and  on  February  18, 1879,  Fran- 
cis B.  French  signed  a  warranty  deed  for  the  property  to  Dud- 
ley S.  French,  and  on  April  4,  1879,  acknowledged  the  deed 
before  S.  Michaels,  a  justice  of  the  peace  in  said  county.  The 
deed  also  contained  the  words  "Signed,  sealed,  and  delivered 
in  the  presence  of  S.  Michaels."  The  deed,  however,  never 
was  in  fact  delivered.  On  August  2,  1879,  Francis  B.  French 
died,  in  the  possession  of  and  owning  the  land  in  controversy. 
During  all  this  time  he  was  a  single  man,  and  did  not  leave 
at  his  death  any  wife  or  child,  or  father  or  mother,  but  left 
several  brothers,  including  the  plaintiff,  Luther  C.  French, 
and  Dudley  S.  French.     It  does  not  appear  that  any  person, 


July,  1887.]  Stone  v.  French.  239 

except  Michaels  and  Francis  B.  French,  ever  saw  the  afore- 
said deed,  or  had  the  slightest  knowledge  thereof,  until  about 
half  an  hour  before  French  died,  when  it  was  found  by  Wil- 
liam Welch,  inclosed  in  an  envelope  with  a  letter,  in  a  cigar- 
box,  in  the  drawer  of  the  table,  in  the  house  occupied  as  a 
residence  by  French.  The  following  words  were  indorsed 
upon  this  envelope:  "This  deed  to  be  placed  in  the  recorder's 
office  at  Erie,  Kansas,  for  record,  and  the  accompanying  letter 
to  be  mailed  as  per  direction  thereon."  At  the  time  this  deed 
was  found,  French  was  speechless  and  unconscious,  and  re- 
mained in  that  condition  until  he  died,  about  half  an  hour 
afterward.  Welch  immediately  telegraphed  to  Dudley  S. 
French,  who  resided  at  Clinton,  Illinois,  and  French  came  to 
Kansas,  arriving  on  August  4,  1879,  at  the  place  where  Fran- 
cis B.  French  died.  Shortly  afterward,  Welch  delivered  to 
French  the  aforesaid  deed.  This  is  the  first  time  that  French 
ever  saw  the  deed;  and  he  never  heard  of  it  until  after  the 
death  of  Francis  B.  French.  On  August  6,  1879,  Dudley  S. 
French  filed  the  deed  for  record  in  the  office  of  the  register  of 
deeds  of  Neosho  County.  Dudley  S.  French  then  took  posses- 
sion of  the  land,  and  remained  in  the  possession  thereof  until 
he  sold  the  same  to  John  Stone,  the  plaintiff'  in  error.  Dudley 
S.  French  was  a  brother-in-law  to  Stone,  and  for  a  time  lived 
at  his  house.  He  was  weak  in  body  and  in  mind,  and  a  part 
of  the  time  could  scarcely  dress  himself.  On  June  10,  1882, 
he  sold  and  conveyed  this  land  by  warranty  deed  to  Stone, 
for  the  expressed  consideration  of  two  thousand  dollars,  but 
for  the  real  consideration  of  only  eight  hundred  dollars.  He 
was  a  single  man  at  the  time.  The  land  was  worth  about 
three  thousand  dollars.  Stone,  at  the  time,  did  not  know  that 
there  was  any  infirmity  in  the  title  of  Dudley  S.  French;  and 
for  the  purposes  of  this  case,  he  must  be  considered  as  in  fact 
a  bona  fide  purchaser,  whatever  the  law  may  be.  The  deed 
from  Dudley  S.  French  to  Stone  was  recorded  on  June  16, 
1882.  At  some  time  during  the  summer  of  1882,  Stone  took 
possession  of  the  land,  and  has  remained  in  the  possession 
thereof  ever  since.  This  action  was  commenced  on  October 
16,  1884.  All  the  heirs  at  law  of  Francis  B.  French,  includ- 
ing the  plaintiff  below,  Luther  C.  French,  and  Dudley  S. 
French,  were  made  parties  to  the  action;  so,  also,  were  the 
defendant,  John  Stone,  and  S.  Michaels  and  others.  Dudley 
8.  French  died  on  January  7,  1885,  after  this  action  was  com- 
menced, but  before  the  trial  was  had. 


240  Stone  v.  Feench.  [Kansas, 

It  is  conceded  hj  all  parties  that  John  Stone  is  entitled  to 
one  seventh  of  the  land  in  controversy, — that  amount  being 
admitted  to  be  the  share  inherited  by  Dudley  S.  French  from 
Francis  B.  French;  but  Stone  claims  that  he  is  entitled  to 
all  the  land;  and  whether  he  is  entitled  to  only  one  seventh 
thereof,  or  to  all  the  land,  is  the  only  substantial  question 
involved  in  this  case.  The  principal  questions  presented  by 
counsel  to  this  court  are  as  follows:  1.  Was  the  deed  from 
Francis  B.  French  to  Dudley  S.  French  ever  delivered  so  as 
to  make  it  a  valid  deed?  2.  If  not,  then  is  John  Stone,  for 
any  reason,  entitled  to  more  than  one  seventh  of  the  land  in 
controversy? 

There  is  no  room  for  even  a  pretense  that  the  deed  was  ever 
in  fact  delivered  to  Dudley  S.  French,  or  to  any  one  else;  and 
there  is  scarcely  any  room  for  even  a  pretense  that  it  was  ever 
in  law  delivered.  The  only  grounds  upon  which  it  is  claimed 
that  it  was  ever  delivered  are  the  letter  of  Francis  B.  French 
to  Dudley  S.  French,  dated  March  1,  1878,  the  indorsement 
on  the  envelope  found  in  the  cigar-box  on  August  2, 1879,  and 
the  words  contained  in  the  deed,  to  wit,  "  Signed,  sealed,  and 
delivered  in  the  presence  of  S.  Michaels." 

Now,  it  may  be  conceded  that  these  things  constitute  some 
evidence  of  a  delivery,  but  when  it  is  shown  conclusively  by 
the  other  evidence  that  there  was  no  delivery,  these  things  can 
have  no  force.  Besides,  the  letter  itself  shows  that  there  was 
no  present  intention  on  the  part  of  Francis  B.  French  of  con- 
veying the  land  or  delivering  a  deed  to  Dudley  S.  French. 
And  it  also  shows  that  Francis  B.  French  contemplated  that 
he  might  before  his  death  sell  the  land  to  some  other  person. 
Francis  B.  French  never  had  any  intention  of  conveying  the 
land  immediately,  but  it  was  always  his  intention,  unless  he 
sold  the  land,  to  retain  the  title  thereto  in  himself  as  long  as 
he  lived,  and  to  let  the  property  go  to  Dudley  S.  French  only 
after  his  death.  This  does  not  constitute  a  delivery  of  a  deed 
or  a  conveyance  of  the  land.  Of  course  there  are  cases  where 
it  is  not  necessary  that  there  should  be  any  actual  manual  de- 
livery of  the  deed.  A  recording  of  the  deed  is  sometimes 
considered  as  a  delivery.  So,  also,  is  a  delivery  to  a  third  per- 
son sometimes  considered  as  a  delivery  to  the  grantee.  And 
where  a  deed  is  executed  by  a  father  to  an  infant  child,  with 
the  intention  that  the  title  shall  immediately  pass  and  vest 
in  the  child,  and  the  father  retains  the  custody  of  the  deed  as 
the  natural  guardian  of  the  child,  the  title  may  pass.     Bat 


July,  1887. J  Stone  v.  French.  241 

none  of  these  cases  is  the  present  case;  nor  is  the  present  case 
anything  like  them.  Dudley  S.  French  was  not  an  infant, 
and  although  he  was  a  man  of  weak  mind,  yet  he  was  not  non 
compos  mentis.  The  deed  was  not  delivered  or  recorded  by 
Francis  B.  French,  nor  during  his  lifetime,  and  he  never  had 
any  intention  that  the  title  should  pass  until  after  his  death. 
The  deed  never  was  a  deed  in  law,  and  Dudley  S.  French 
never  had  any  right  to  it;  nor  had  he  any  right  to  have  it 
recorded ;  nor  did  it  convey  any  title,  interest,  or  estate  to  him. 
It  was  not  merely  voidable,  but  it  was  absolutely  void.  The 
court  of  appeals  of  New  York  uses  the  following  language: 
"A  rule  of  law,  by  which  a  voluntary  deed  executed  by  the 
grantor,  afterward  retained  by  him  during  his  life  in  his  own 
exclusive  possession  and  control,  never  during  that  time  made 
known  to  the  grantee,  and  never  delivered  to  any  one  for  him, 
or  declared  by  the  grantor  to  be  intended  as  a  present  opera- 
tive conveyance,  could  be  permitted  to  take  effect  as  a  trans- 
mission of  the  title,  is  so  inconsistent  with  every  substantial 
right  of  property  as  to  deserve  no  toleration  whatever  from 
any  intelligent  court,  either  of  law  or  equity":  Fisher  v.  Hallf 
41  N.  Y.  421,  422;  see  also  Burton  v.  Boyd,  7  Kan.  17,  31,  et 
seq.;  Huey  v.  Huey,  65  Mo.  689. 

Taking  this  view  of  the  case,  John  Stone  obtained  no  title 
from  Dudley  S.  French,  for  Dudley  S.  French  had  none  what- 
ever to  convey.  This  is  unlike  a  case  where  a  deed  is  only 
voidable,  and  a  bona  fide  purchaser  obtains  title  from  the 
holder  of  the  same  without  any  notice  of  its  infirmity.  In 
euch  a  case  he  may  obtain  a  good  title;  but  where  the  deed  is 
absolutely  void  he  cannot.  It  seems  to  be  admitted  that  if 
the  deed  were  forged,  no  person  could  obtain  any  title  under 
it,  however  innocent  he  might  be;  but  a  forged  deed  is  no 
more  void  than  this  deed.  Both  in  this  respect  are  precisely 
alike;  both  are  equally  void,  and  neither  the  record  of  a 
forged  deed  nor  the  record  of  an  absolutely  void  deed  can  be 
invoked  to  support  or  bolster  up  a  disputed  title;  for  the  record 
is  worth  no  more  than  the  original  deed  itself.  It  is  only  in- 
struments that  have  some  validity,  and  that  may  in  some 
manner  affect  real  estate,  that  can  be  recorded  legally.  There 
id  no  statute  authorizing  the  recording  of  a  void  instrument, 
and  it  is  an  error  to  suppose  that  the  statutes  can  have  the 
effect  of  making  valid  an  absolui-oly  void  instrument  by  per- 
mitting the  void  instrument  to  be  recorded.  The  iuEtrument 
b  Btill  void,  although  recorded.    The  record  can  give  it  no 

AM.  8T.  Rep.,  Vol.  I,  — 16 


242  Stone  v.  French.  [Kansas, 

validity.  As  tending  to  support  the  view  that  a  purchaser  of 
real  estate  from  a  person  holding  under  a  void  recorded  deed, 
although  in  fact  a  bona  fide  purchaser,  cannot  obtain  a  good 
or  valid  title,  or  indeed  any  title,  we  refer  to  the  following  au- 
thorities: Everts  v.  Agnes,  6  Wis,  453;  Tisher  v.  Beckwithy  30 
Id.  55;  11  Am.  Rep.  546;  Chipman  v.  Tucker,  38  Wis.  43;  20 
Am.  Rep.  1;  Van  Amringe  v.  Morton,  4  Whart.  382;  34  Am. 
Dec.  517;  Smith  v.  South  Royalton  Bank,  32  Vt.  341;  76  Am. 
Dec.  179;  Harkreader  v.  Clayton,  56  Miss.  383;  31  Am.  Rep. 
369;  Berry  v.  Anderson,  22  Ind.  37,  40.  The  case  of  Lewis  v. 
Kirk,  28  Kan.  497,  505,  42  Am.  Rep.  173,  has  no  reference  to 
void  deeds,  or  to  the  record  of  void  deeds. 

A  deed  not  delivered  at  all  is  a  very  different  thing  from  a 
deed  actually  delivered,  even  though  the  delivery  of  the  same 
may  have  been  procured  through  fraud;  and  a  deed  not  de- 
livered, but  wrongfully  in  the  hands  of  the  apparent  grantee, 
without  fault  or  negligence  on  the  part  of  the  owner  of  the 
land,  is  unlike  a  deed  not  delivered,  but  which,  through  the 
fault  or  negligence  of  the  owner,  has  been  permitted  to  get 
into  the  hands  of  the  apparent  grantee.  In  the  present  case 
the  deed  was  never  delivered,  and  was  not  permitted  to  get 
into  the  hands  of  Dudley  S.  French,  the  apparent  grantee, 
while  Francis  B.  French  was  the  owner  of  the  land;  but  after 
Francis  B.  French  died,  and  after  the  title  to  the  land  had 
passed  from  him  to  his  heirs,  the  deed  did  get  into  the  hands 
of  Dudley  S.  French,  the  apparent  grantee,  but  not  through 
any  fault  or  negligence  on  the  part  of  the  heirs,  who  were  then 
the  owners  of  the  land. 

Other  points  are  raised  in  this  case,  but  they  are  technical 
and  unsubstantial,  and  require  no  comment.  To  reverse  the 
judgment  of  the  court  below  for  any  of  them  would  be  a  vio- 
lation of  the  spirit  of  the  Civil  Code,  and  especially  of  sections 
140  and  304.  We  think  no  substantial  error  has  been  com- 
mitted in  this  case;  and  it  is  unnecessary  to  prolong  this 
opinion. 

The  judgment  of  the  court  below  will  be  aflBrmed. 


Delivery  of  Deed.  —  A  deed  is  never  valid  in  the  absence  of  its  delivery 
by  the  grantor  and  its  acceptance  by  the  grantee.  With  respect  to  its  ac- 
ceptance there  may  be  many  cases  in  which  it  will  be  presumed  without  any 
direct  evidence  upon  the  subject,  as  where  such  acceptance  is  manifestly  to 
the  interest  of  the  grantee:  Bullitt  v.  Taylor,  69  Am.  Dec.  412;  Stone  v.  King, 
84  Id.  557.  It  has  been  held  that  it  is  possible  for  a  deed  to  be  delivered  and 
yet  remain  in  the  hands  of  the  grantor.     If  a  delivery  can  exist  under  such 


Julv,  1887.]  Johnson  v.  Williams.  243 

circtiuistances,  it  can  only  be  where  the  evidence  shows  that  the  grantor  in- 
tended an  absolute  and  irrevocable  delivery:  Wall  v.  Wall,  64  Id.  147.  In 
the  event  of  the  execution  and  recording  of  a  conveyance  of  a  father  to  his 
minor  child,  the  acceptance  of  the  deed  by  the  latter  will  be  presumed  and 
the  delivery  regarded  as  sufficient,  though  the  father  obtains  possession  of 
the  deed  after  it  is  recorded,  and  thereafter  retains  such  possession:  Tobin 
V.  Bass,  55  Am.  Rep.  392.  But  the  recording  of  a  deed,  where  its  deliv- 
ery is  not  proved  or  presumed,  does  not  entitle  it  to  be  regarded  as  a  deed, 
or  given  any  effect  whatsoever:  King  v.  Gilson,  83  Am.  Dec.  269.  The  prac- 
tice prevails,  to  a  considerable  extent,  of  signing  and  acknowledging  convey- 
ances which  the  grantors  expect  to  operate  from  and  after  their  deaths,  but 
not  before.  Nothing,  we  think,  can  be  clearer  than  that  a  deed  must  have 
«ome  effect  in  the  lifetime  of  the  grantor,  or  else  can  have  no  effect  whatso- 
ever, unless,  indeed,  where  it  is  so  executed  and  attested  as  to  entitle  it  to 
be  treated  as  testamentary  in  its  character.  However  this  may  be,  if  the 
deed,  whether  retained  by  the  grantor  or  put  by  him  in  the  possession  of  a 
third  person,  is  by  him  so  far  kept  witnin  his  control  that  he  has  the  right 
to  resume  possession  of  it  or  not,  then,  certainly,  it  cannot  be  valid  as  a 
conveyance,  though  he  may  have  intended  that  it  should  so  operate  in  case 
that  he  did  not  repossess  himself  of  it,  or  destroy  it,  previous  to  his  death: 
Baker  v.  Haskell,  93  Am.  Dec.  455,  and  note;  Jones  v.  Jones,  16  Id.  35,  and 
extended  note,  in  which  the  cases  on  the  subject  are  referred  to. 

Undelivered  Deed,  not  Fully  Executed,  stolen  from  grantor,  passos 
no  title,  even  to  a  honajide  holder  for  value:  Tisher  v.  Beckwith,  11  Am.  Rep. 
646;  Van  Amrin(je  v.  Moi-ton,  4  Whart.  382;  34  Am.  Dec  517;  CIdpman  v. 
Tudcer,  38  Wis.  43;  20  Am.  Rep.  1. 

What  CoNSTrruTES  Sufficient  Delivery  of  Deed:  See  Wellbom  v. 
Weaver,  63  Am.  Dec.  235;  Hibberd  v.  Sinith,  56  Am.  Rep.  726;  Burke  v. 
Adams,  50  Id.  510;  Taft  v.  TqJ'l,  60  Id.  291;  Fain  v.  SmUh,  58  Id.  281,  and 
note. 


Johnson  v.  Williams. 

rS7  Kansas,  179.] 

Quitclaim  Deed  to  Land  Conveys  All  Grantor's  Interest  and  estate  in 
such  land,  unless  otherwise  specified  in  the  deed  itself. 

Covenants  of  Former  Grantors  Which  Run  with  Land  Pass  to 
Grantee  under  Quitclaim  Deed.  —  Grantee  in  a  quitclaim  deed  ob- 
tains the  right  to  any  interest  that  may  at  any  time  come  to  grantees  of 
bia  former  grantors  by  virtue  of  covenants  that  run  with  the  land. 

Grantor  Giving  Quitclaim  Deed  may  subsequently  acquire  and  assert 
against  his  grantee  adverse  title  to  the  same  land. 

Bona  Fide  Purchaser. — Grantee  holding  only  a  quitclaim  deed  from  his 
immediate  grantor  is  not  a  bona  fide  purchaser. 

Grantkb  under  Quitclaim  Deed  1?akes  with  Noticb  of  Doubtful  Title, 
and  is  put  upon  inquiry  as  to  such  title;  and  he  is  presumed  to  have  a 
knowledge  of  all  outstanding  equities  and  interests  which  he  could  have 
obtained  with  a  reasonable  degree  of  diligence. 

Ejectment  brought  by  Williams  against  Johnson  to  recover 
certain  lands. 


244  Johnson  v.  Williams.  [Kansas, 

Bowen  and  Kirkpatrick,  for  the  plaintiff  in  error. 
Scott  and  Frith,  for  the  defendant  in  error. 

By  Court,  Valentine,  J.  This  was  an  action  in  the  nature 
of  ejectment,  brought  by  D.  H.  Williams  against  Samuel  M. 
Johnson  for  the  recovery  of  certain  real  estate  in  Elk  County. 
The  record  clearly  shows  that  Williams  is  the  legal  owner  of 
the  land  in  controversy,  unless  his  title  thereto  has  been 
divested  by  a  certain  tax  deed,  and  other  proceedings  founded 
thereon,  which  will  be  hereafter  mentioned.  On  September 
17,  1881,  the  aforesaid  tax  deed  was  executed  by  the  county 
clerk  of  Elk  County  to  Anna  Eby,  and  was  recorded  on  Sep- 
tember 20,  1881.  On  said  day  Anna  Eby  executed  a  quit- 
claim deed  for  the  land  to  Lark  Vinson,  which  deed  was 
recorded  on  December  10,  1881.  On  September  26,  1881, 
Vinson  commenced  an  action  in  the  district  court  of  Elk 
County  against  the  said  defendant,  D.  H.  Williams,  and 
others,  to  quiet  his  title  to  the  property  in  controversy,  and 
obtained  service  of  summons  by  publication  only.  On  Decem- 
ber 8,  1881,  a  judgment  was  rendered  in  that  action  quieting 
Vinson's  title  as  against  all  the  defendants  in  that  action.  On 
December  10,  1881,  Vinson  executed  a  quitclaim  deed  for  the 
property  to  Richard  M.  Roe,  which  deed  was  recorded  on  De- 
cember 19,  1881.  On  July  22,  1882,  said  Roe,  by  his  quit- 
claim deed,  remised,  released,  and  quitclaimed  unto  Samuel 
M.  Johnson,  the  plaintiff  in  error,  defendant  below,  all  his 
right,  title,  and  interest  in  and  to  the  land,  which  deed  was 
duly  recorded  on  July  25,  1882.  On  October  12,  1882,  Wil- 
liams filed  his  motion  in  the  district  court  of  Elk  County  to 
open  up  said  judgment  under  section  77  of  the  Civil  Code;  and 
such  proceedings  were  had  that  on  November  8, 1883,  the  mo- 
tion was  sustained,  and  Williams  permitted  to  defend  in  the 
action.  On  March  7,  1884,  a  trial  was  had  in  the  action,  and 
judgment  was  rendered  in  favor  of  Williams,  and  against  Vin- 
son, decreeing  Williams  to  be  the  owner  in  fee-simple  of  the 
land,  and  quieting  his  title  as  against  Vinson  and  all  persons 
claiming  under  him.  This  present  action  of  ejectment  was 
commenced  on  August  8,  1884,  and  was  tried  before  the  court 
without  a  jury,  and  judgment  was  rendered  in  favor  of  Wil- 
liams, and  against  Johnson,  for  the  recovery  of  the  land,  and 
for  costs.     Johnson  brings  the  case  to  this  court  for  review 

It  is  admitted  that  Johnson,  in  purchasing  the  property, 
paid  value  therefor,  and  at  the  time  had  no  knowledge  of  the 


July,  1887.]  Johnson  v.  Williams.  245 

claim  of  Williams;  or  in  otner  words,  it  is  admitted  that 
Johnson  was  "a  purchaser  in  good  faith"  of  the  property, 
provided  a  purchaser  taking  a  quitclaim  deed  for  the  property 
can  be  "a  purchaser  in  good  faith."  In  this  state,  a  quitclaim 
deed  to  land  will  convey  to  the  grantee  all  the  rights,  interests, 
title,  and  estate  of  the  grantor  in  and  to  the  land,  unless  other- 
wise specified  by  the  deed  itself:  Conveyance  Act,  sec.  2;  Utley 
V.  Fee,  33  Kan.  683,  691.  Such  deed  will  convey  such  of  the 
covenants  of  former  grantors  as  run  with  the  land :  Scoffins  v. 
Grandstaff,  12  Id.  467.  And  the  grantee  in  a  quitclaim  deed 
will  be  entitled  to  such  further  title  or  estate  as  may  inure  at 
any  time  to  the  grantees  of  such  former  grantors  by  virtue  of 
such  covenants  as  run  with  the  land:  See  case  last  cited.  But 
a  quitclaim  deed  will  not  estop  the  maker  thereof  from  after- 
ward purchasing  or  acquiring  an  adverse  title  or  interest,  and 
holding  it  as  against  his  grantee:  Simpson  v.  Greeley,  8  Id.  586, 
597,  598;  Bruce  v.  Luke,  9  Id.  201,  207,  et  seq.;  12  Am.  Rep. 
491;  Scoffins  v.  Grandstaff,  12  Kan.  469,  470;  Young  v.  Clip' 
pinger,  14  Id.  148,  150;  Ott  v.  Sprague,  27  Id.  624.  And  a 
person  who  holds  only  by  virtue  of  a  quitclaim  deed  from  hia 
immediate  grantor,  whether  he  is  a  purchaser  or  not,  is  not  a 
bona  fide  purchaser:  Bayer  v.  Cockrill,  3  Id.  283,  294;  Oliver  v. 
Piatt,  3  How.  333,  410;  May  v.  Leclaire,  11  Wall.  217,  232; 
Villa  V.  Rodriguez,  12  Id.  323;  Dickerson  v.  Colgrove,  100  U.  S. 
678,  584;  Baker  v.  Humphrey,  101  Id.  494,  499;  Runyon  v. 
Smith,  18  Fed.  Rep.  579;  United  States  v.  Sliney,  21  Id.  895; 
Watson  v.  Phelps,  40  Iowa,  482;  Smith  v.  Dunton,  42  Id.  48; 
Besore  v.  Dosh,  43  Id.  211,  212;  Springer  v.  Bartle,  46  Id.  688; 
Postel  v.  Palmer,  71  Id.  157;  Bragg  v.  Paulk,  42  Me.  517; 
Coe  V.  Persona  Unknown,  43  Id.  432;  Ridgeway  v.  Holliday,  59 
Mo.  444;  Stoffel  v.  Schroeder,  62  Id.  147;  Mann  v.  Best,  62  Id. 
491;  Rodgers  v.  Burchard,  34  Tex.  441,  452;  7  Am.  Rep.  283; 
Harrison  v.  Boring,  44  Tex.  255;  Thorn  v.  Newson,  64  Id.  161; 
63  Am.  Rep.  747;  Richardson  v.  Levi,  67  Tex.  359;  Smith's  Heirs 
V.  Branch  Bank  of  Mobile,  21  Ala.  125,  134;  Derrick  v.  Brown, 
66  Id.  162;  Everest  v.  Ferris,  16  Minn.  26;  Marshall  v.  Roberts, 
18  Id.  405;  10  Am.  Rep.  201;  Wooidfolk  v.  Blount,  3  Hayw. 
(Tenn.)  146;  9  Am.  Dec.  736;  Smith  v.  Winston,  2  How.  (Miss.) 
601;  Kerr  v.  Freeman,  33  Miss.  292,  296;  Learned  v.  Corley,  43 
Id.  688;  Leland  v.  Isenbeck,  1  Idaho,  469;  Baker  v.  Woodward, 
12  Or.  3,  10;  Richards  v.  Snyder,  11  Id.  511;  Snowden  v.  Tyler, 
21  Xeb.  199;  McAdow  v.  Black,  6  Mont.  601;  Martin  v.  Morris, 
62  Wis.  418;   Laurens  v.  Anderson,  1  S.  W.  Rep.  379  (Tex.); 


246  Jom^soN  v.  Williams.  [Kansas, 

Dodge  v.  Briggs,  27  Fed.  Rep.  160;  Peaks  v.  Blethen,  77  Me. 
610. 

It  may  be  that,  with  reference  to  some  equities  or  interests  in 
real  estate,  the  purchaser  who  holds  only  under  a  quitclaim  deed 
may  be  deemed  to  be  a  bona  fide  purchaser;  for  equities  and 
interests  in  real  estate  may  sometimes  be  latent,  hidden,  secret, 
und  concealed,  and  not  only  unknown  to  the  purchaser,  but 
undiscoverable  by  the  exercise  of  any  ordinary  or  reasonable 
degree  of  diligence.  It  is  possible,  also,  that  a  purchaser  tak- 
ing a  quitclaim  deed  may,  under  the  registry  laws,  be  consid- 
ered a  bona  fide  purchaser  with  reference  to  a  prior  unrecorded 
deed,  with  respect  to  which  he  has  no  notice,  nor  any  reason- 
able means  of  obtaining  notice:  Bradbury  v.  Davis,  5  Col.  265; 
Butterfi^ld  v.  Smith,  11  111,  485;  Brown  v.  Banner  Coal  and 
Coal  Oil  Co.,  97  Id.  214;  37  Am.  Rep.  105;  Fox  v.  Hall,  74  Mo. 
315;  41  Am.  Rep.  316;  Graff  \.  Middleton,  43  Cal.  341;  Pet- 
tingill  v.  Devin,  35  Iowa,  344.  But,  contra,  see  Thorn  v.  New- 
som,  64  Tex.  161;  53  Am.  Rep.  747,  and  note;  Pastel  v.  Palmer^ 
supra. 

We  would  think  that  in  all  cases,  however,  where  a  pur- 
chaser takes  a  quitclaim  deed,  he  must  be  presumed  to  take  it 
with  notice  of  all  outstanding  equities  and  interests  of  which 
he  could,  by  the  exercise  of  any  reasonable  diligence,  obtain 
notice  from  an  examination  of  all  the  records  afiFecting  the 
title  to  the  property,  and  from  all  inquiries  which  he  might 
make  of  persons  in  the  possession  of  the  property,  or  of  per- 
sons paying  taxes  thereon,  or  of  any  person  who  might,  from 
any  record,  or  from  any  knowledge  which  the  purchaser  might 
have,  seemingly  have  some  interest  in  the  property.  In  nearly 
all  cases  between  individuals,  where  land  is  sold  or  conveyed, 
and  where  there  is  no  doubt  about  the  title,  a  general  warranty 
deed  is  given;  and  it  is  only  in  cases  where  there  is  a  doubt 
concerning  the  title  that  only  a  quitclaim  deed  is  given  or 
received;  hence,  when  a  party  takes  a  quitclaim  deed,  he 
knows  he  is  taking  a  doubtful  title,  and  is  put  upon  inquiry 
as  to  the  title.  The  very  form  of  the  deed  indicates  to  him 
that  the  grantor  has  doubts  concerning  the  title;  and  the  deed 
itself  is  notice  to  him  that  he  is  getting  only  a  doubtful  title. 
Also,  as  a  quitclaim  deed  can  never  of  itself  subject  the  maker 
thereof  to  any  liability,  such  deeds  may  be  executed  recklessly, 
and  by  persons  who  have  no  real  claim,  and  scarcely  a  shadow 
of  claim  to  the  lands  for  which  the  deeds  are  given;  and  tho 
deeds  may  be  executed  for  a  merelv  nominal  consideration. 


July,  1887.]  Johnson  v.  Williams,  247 

and  merely  to  enable  speculators  in  doubtful  titles  to  harass 
and  annoy  the  real  owners  of  the  land;  and  speculators  in 
doubtful  titles  are  always  ready  to  pay  some  trifling  or  nom- 
inal consideration  to  obtain  a  quitclaim  deed.  This  kind  of 
thing  should  not  be  encouraged.  Speculators  in  doubtful 
titles  are  not  bo  pre-eminently  unselfish,  altruistic,  or  philan- 
thropic in  their  dealings  with  others  as  to  be  entitled  to  any 
very  high  degree  of  encouragement  from  any  source.  There 
are  cases  which  are  claimed  to  be  adverse  to  the  opinions 
herein  expressed.  They  will  be  found  cited  in  Martindale  on 
Conveyancing,  sees.  59,  285,  and  notes,  and  12  Cent.  L.  J.  127. 

Not  wishing  to  decide  anything  further  in  this  case  than  is 
necessary  to  be  decided,  our  decision  will  be  as  follows:  A  per- 
son who  holds  real  estate  by  virtue  of  a  quitclaim  deed  only 
from  his  immediate  grantor,  whether  he  is  a  purchaser  or  not, 
is  not  a  bona  fide  purchaser  with  respect  to  outstanding  and 
adverse  equities,  and  interests  shown  by  the  records,  or  which 
are  discoverable  by  the  exercise  of  reasonable  diligence  in 
making  proper  examinations  and  inquiries. 

The  judgment  of  the  court  below  will  be  afl&rmed. 


Words  "Release,  Remise,  and  Forever  Quitclaim,"  used  iu  a  deed  of 
land,  are  efifectual  to  pass  title  to  grantee:  Rotoe  v.  Beckett,  95  Am.  Dec.  676. 
Qaitclaim  deed  is  as  effectual  to  pass  title  as  a  deed  of  bargain  and  sale:  Mc- 
Connel  v.  Reed,  38  Id.  124,  and  note.  Quitclaim  deed  conveys  only  interest 
of  grantor  at  the  time  it  was  executed:  I'owle  v.  Swing,  99  Id.  181;  Taylor  v. 
Harrison,  26  Am.  Rep.  304;  Derrick  v.  Brown,  66  Ala.  162;  Thorn  v.  Newsotit 
65  Am.  Rep.  747,  and  note;  Rodgers  v.  Burckard,  7  Id.  283.  Entry  under 
quitclaim  deed  of  tax  collector  gives  color  of  title  and  possession  of  land  cov- 
ered by  deed:  Wells  v.  Jackson  etc.  Co.,  90  Id.  575,  and  note  592.  After- 
acquired  title  does  not  pass:  Brtice  v.  Luke,  12  Id.  491.  To  the  rule  that 
quitclaim  deed  conveys  only  the  interest  of  grantor  at  time  conveyance  is 
made,  there  are  two  exceptions;  oue  is  founded  upon  the  recording  act,  and 
the  other  iswliere  sale  has  been  made  by  sheritf  under  execution:  Allison  v. 
Thomas,  ante,  p.  89.  Quitclaim  deed,  with  the  additional  words,  "in  such 
manner  as  he  [the  grantor]  may  and  to  the  extent  that  he  has  heretofore  ac- 
quired title  to,"  etc.,  will  not  pass  an  after-acquired  title:  Torrence  v.  Shedd, 
112  111.  466.  Quitclaim  deed,  given  by  one  who  is  a  devisee  for  life,  and  who 
also  has  a  power  to  dispose  of  entire  estate,  conveys  his  life  estate  only: 
Towle  V.  Ewing,  99  Am.  Dec.  179.  Deed  of  release  and  quitclaim,  describ- 
ing interest  conveyed  by  grantor  as  that  held  by  him  as  heir  of  A,  does  not 
convey  an  independent  title  to  grantor:  Ingalls  v.  Newliall,  139  Mass.  268. 
Land  bought  by  grantor,  and  held  by  him  under  land-office  certificate,  will 
pan  to  grantee  under  quitclaim  deed,  when  it  is  afterwards  patented  to 
grantor:  Frost  v.  Afeth  etc.,  56  Mich.  62.  Quitclaim  deed  of  mortgaged  prem- 
ises, made  by  the  mortgagee  before  foreclosure  of  mortgage,  and  without  as- 
•ignment  to  grantee  of  mortgaged  debt,  passes  no  title:  Lunl  v.  Lunt,  71  Me. 
S77.     Recorded  quitclaim  deed  takes  precedence  of  nrior  unrecorded  war* 


248  Bennett  v.  Kroth.  [Kansas, 

ranty  deed:  Cviler  v.  James,  54  Am.  Rep.  603;  Fox  v.  Hall,  41  Id.  316; 
Brown  v.  Banner  etc.  Co.,  37  Id.  105.  Prior  unrecorded  quitclaim  deed  takes 
precedence  of  subsequent  quitclaim  deed  which  is  duly  recorded:  Marshall  v. 
Roberts,  10  Id.  201.  Effect  of  prior  unrecorded  deed:  Johnson  v.  Tool,  25  Id. 
164,  note.  Interest  of  grantee  under  recorded  quitclaim  deed  is  subordinate 
to  that  conveyed  by  a  prior  unrecorded  mortgage:  Snow  v.  Lake's  Adm'r,  61 
Id.  625;  contra,  Allison  v.  Thomas,  ante,  p.  89.  Record  of  quitclaim  deed  of 
land  as  constructive  notice:  Ely  v.  Wilcox,  91  Am.  Dec.  436,  and  note.  Op- 
erative words  of  release  in  simple  quitclaim  deed  are  "remise,  release,  and 
quitclaim":  Touchard  v.  Croio,  81  Id.  108.  The  words  "all  my  right,  title, 
and  interest  in  and  unto,"  in  granting  part  of  a  deed,  make  it  a  quitclaim 
deed:  Cummings  v.  Dearborn,  56  Vt.  441. 


Bennett  v.  Kroth. 

137  Kansas,  235.] 

Costs  in  Criminal  Actions  are  Unknown  at  common  law,  and  are  only 
given  by  statute. 

Costs  are  Statutory  Allowance  to  a  party  to  an  action  for  his  expenses 
incurred  in  such  action,  and  have  reference  only  to  the  parties  and  the 
amounts  paid  by  them. 

Witnesses  may  be  Compelled  by  State  to  attend  court  and  give  their 
evidence  without  compensation. 

Witnesses  on  Behalf  of  Defendant  Charged  with  Crime,  whom  he  re- 
quests or  compels  to  attend  court,  are  entitled  to  recover  of  him  for 
their  services  as  such  witnesses. 

Action  by  Kroth  for  his  services  in  attending  court  as  a 
witness  in  behalf  of  defendants.  Defendants  demurred.  The 
demurrer  was  overruled,  and  judgment  entered  for  plaintifif. 

Hayden  and  Hayden,  for  the  plaintiffs  in  error. 

W.  S.  Hoaglin  and  John  T.  Morton,  for  the  defendant  in 
error. 

By  Court,  Holt,  C.  The  petition  filed  by  the  defendant  in 
error,  plaintiff  below,  is  in  the  usual  form  for  services  ren- 
dered; it  states  that  plaintiff  was  in  attendance  upon  the 
district  court  for  five  days  at  defendants'  request;  that  he 
was  compelled  to  travel  thirty-two  miles  in  going  to  and  re- 
turning from  court.  The  defendants  demurred  to  the  petition, 
because  it  did  not  state  facts  sufiicient  to  constitute  a  cause 
of  action.  The  demurrer  was  overruled  by  the  court,  and 
judgment  rendered  for  plaintiff  for  the  amount  claimed  in  his 
petition.  Nothing  was  stated  therein  concerning  fees,  though 
the  claim  was  for  the  sum  the  fees  would  be  for  attendance  at 
court  and  mileage,  as  provided  by  statute.    Both  parties  agree 


July,  1887.]  Bennett  v.  Kboth.  249 

that  there  is  only  one  question  in  this  case,  and  that  is,  whether 
a  defendant  tried  for  a  felony  and  acquitted  is  liable  to  his 
own  witnesses.  If  he  is,  then  this  judgment  should  be  af- 
firmed; if  not,  it  should  be  reversed. 

Plaintiff's  in  error  suggest  that  there  are  quite  a  number  of 
other  claims  similar  to  this  one,  and  as  it  is  a  question  of  some 
public  importance,  we  give  it  more  careful  consideration  than 
the  sum  involved  may  at  first  seem  to  justify.  The  plaintiff's 
in  error,  in  their  brief,  say:  "The  constitution  guarantees  to 
every  person  accused  of  crime  the  right  to  meet  the  witness 
face  to  face,  and  to  have  compulsory  process  to  compel  the 
attendance  of  witnesses  in  his  behalf.  By  this  compulsory 
process,  the  state  in  its  sovereign  capacity  commands  the  wit- 
ness to  appear  and  testify,  not  merely  for  the  sake  of  the 
plaintiff^  or  defendant,  but  for  the  investigation  and  adjudica- 
tion of  right.  The  service  which  the  witness  thus  renders  is 
merely  the  discharge  of  a  public  duty  which  he  owes  to  the 
state;  and,  unless  some  statutory  provision  is  made  for  his 
compensation,  he  must  render  such  service  gratuitously." 

They  further  say  that  costs  and  fees  are  regulated  exclu- 
sively by  statute,  and  are  unknown  at  common  law;  and  be- 
cause there  is  no  statute  compelling  a  defendant  to  pay  costs 
when  he  is  acquitted,  therefore  the  defendants  are  not  liable 
in  this  action.  This  court  has  held  "  that  costs  are  unknown 
at  common  law,  and  are  only  given  by  statutory  direction": 
State  V.  Campbell,  19  Kan.  481.  It  is  well  enough,  there- 
fore, for  us  to  understand  what  is  meant  by  costs:  they  are 
the  statutory  allowance  to  a  party  to  an  action  for  his  ex- 
penses in  conducting  such  action;  they  have  reference  only  to 
the  parties,  and  the  amounts  paid  or  presumed  to  have  been 
paid  by  the  party  seeking  to  recover  such  expenses.  Tho 
basis  of  the  claim  in  this  cause  is  not  founded  upon  any 
claim  for  costs  in  the  action  of  the  state  of  Kansas  against 
these  defendants;  but  the  question  is,  whether  the  plaintiff", 
who  was  requested  to  appear  in  court  by  the  defendants,  as 
alleged  in  his  petition,  can  recover  of  them  for  his  services. 
Ordinarily,  of  course,  at  common  law  he  could,  for  services 
rendered  at  their  request. 

We  wish,  however,  to  decide  this  question  on  the  theory  that 
the  plaintiff"  was  regularly  subpoenaed  to  appear  in  court  as  a 
witness  for  the  defendants,  and  not  at  their  personal  request, 
as  might  fairly  be  inferred  from  the  petition.  If  the  defend- 
ants' theory  is  correct,  we  have  this  singular  construction  of 


250  Bennett  v.  Kroth.  [Kansas, 

the  law:  when  a  defendant  personally  requests  a  party  to 
appear  in  court  as  a  witness  in  his  behalf,  he  will  be  liable 
to  such  witness  for  services  rendered;  but  when  he  requests 
him  to  appear  through  the  proper  officers  of  the  court,  then 
the  fact  that  the  officers  brought  his  witness  into  court  would 
relieve  him  of  such  liability.  We  cannot  believe  there  is  any 
such  distinction. 

We  agree  with  the  defendants  that  the  state,  in  the  exercise 
of  its  sovereignty,  may  require  certain  services  of  its  citizens 
without  compensation;  and  this  state  does  to  this  day  bring 
its  witnesses  into  court  in  certain  causes  where  it  is  a  party, 
without  becoming  liable  to  them  in  any  event  for  witness  fees. 
It  is  said  that  it  is  as  much  the  duty  and  interest  of  the  state 
to  see  to  it  that  an  innocent  man  charged  with  crime  is  ac- 
quitted as  it  is  to  convict  and  punish  a  criminal;  and  there- 
fore it  is  contended  that  in  cases  like  the  one  we  are  now 
considering,  because  the  state  is  relieved  of  the  burden  of 
paying  costs,  the  defendant  ought  not  to  pay  his  own  witnesses. 
An  argument  might  be  fairly  drawn  from  the  above  premises 
that  it  would  be  proper  for  the  state  to  pay  the  witness  of  a 
defendant  who  has  been  falsely  charged  with,  and  unjustly 
prosecuted  for,  an  alleged  crime.  Such  an  argument  would 
be  properly  addressed  to  the  legislature,  but  it  has  no  place 
in  the  courts. 

Our  statute  relieves  the  state  in  this  case  of  all  liability  in 
express  terms.  It  would  not  be  liable,  probably,  if  there  were 
no  such  statutory  provision;  but  it  is  insisted,  because  the 
defendants  cannot  recover  their  costs  of  the  state,  the  wit- 
nesses for  the  defendants  ought  not  to  recover  of  them;  or,  in 
other  words,  if  for  any  reason  B  could  not  recover  of  A  for 
damages  A  had  inflicted  upon  him,  therefore  B  would  not  be 
liable  to  C,  though  B  had  called  upon  him  for  aid  against  A. 
This  is  neither  good  law  nor  logic.  While  the  state  is  equally 
interested  in  the  acquittal  of  the  innocent  and  in  the  convic- 
tion of  the  guilty,  the  long-established  practice  in  the  courts 
does  not  carry  out  the  theory  contended  for.  The  state  em- 
ploys and  pays  an  attorney  to  select  the  witnesses  for  the 
state,  and  to  prosecute  the  action,  while  the  defendant  em- 
ploys his  own  counsel  and  calls  the  witnesses  in  his  own 
behalf.  The  defendant  has  a  personal  interest  in  his  own 
behalf,  differing  from  that  of  other  citizens  of  the  state.  He 
is  given  by  the  law  an  ample  opportunity  to  protect  himself, 
and  it  is  his  province,  prompted  by  self-interest,  to  do  so.    So 


July,  1887.]  Bennett  v.  Kroth.  251 

he  calls  upon  those  whom  he  believes  may  help  him;  they  do 
eo  at  his  request;  he  should  pay  them  for  their  services. 

The  provision  of  our  constitution  guaranteeing  compulsory 
process  to  every  one  charged  with  crime  does  not  extend  to 
the  payment  of  the  fees  of  the  witnesses  for  the  defendant, 
nor  does  it  relieve  him  of  his  liability  to  them:  Carpenter  v. 
People,  3  Gilm.  147. 

The  state  by  this  provision  gives  every  facility  for  a  fair 
and  impartial  trial  to  all  citizens  alike,  high  and  low,  rich 
and  poor;  and,  in  order  to  give  a  defendant  the  full  benefit 
thereof,  provides  by  a  statute  in  harmony  with  it  that  ina- 
bility to  pay  his  fees  in  advance  shall  not  impair  his  means 
of  defense.  This  clause  of  our  constitution  has  no  more  ap- 
plication to  paying  the  defendant's  witnesses  than  in  selecting 
them.  After  the  defendant  has  filed  his  precipe  for  witnesses, 
the  state  guarantees  to  the  defendant  the  use  of  all  its  pow- 
ers in  bringing  them  into  court;  this  is  its  scope  and  effect, 
and  nothing  more. 

But,  in  our  view  of  the  case,  we  need  not  decide  what  may 
be  the  duties  of  the  citizen  to  the  state,  nor  of  the  state  to 
one  of  its  citizens  who  is  called  as  a  witness  into  its  courts, 
nor  even  to  one  who  has  been  charged  with  crime,  and  tried, 
and  acquitted.  It  is  the  question  of  liability  of  one  party  to 
another, — these  defendants  to  their  witness  whom  they  called 
to  their  aid.  It  does  not  change  the  relations,  duties,  or  obli- 
gations of  these  parties,  so  far  as  the  liability  of  these  defend- 
ants to  plaintiff  for  compensation  is  concerned,  because  he 
upon  whom  they  called,  in  order  to  render  the  aid  desired, 
came  into  court  as  a  witness  in  their  behalf;  nor  does  it  affect 
that  liability  because  the  state,  in  defendants'  interest,  could 
have  made  that  call  imperative.  We  believe  that  the  rule, 
that  he  who  requires  and  receives  services  from  another 
should  pay  him  therefor,  applies  to  this  action,  and  should 
govern  our  decision. 

We  presume  it  will  be  conceded  that  a  witness  would  be 
liable  to  the  defendant  for  any  damages  occasioned  by  his 
failure  to  attend  court  when  regularly  subpoenaed.  Ordinarily 
it  would  be  fair  to  infer  that,  because  of  this  contingent  lia- 
bility of  the  witness  to  the  defendant  if  he  failed  to  perform 
certain  services,  there  ought,  on  the  other  hand,  to  be  some 
compensation  if  he  did  perform  them. 

We  have  carefully  examined  all  the  authorities  cited  in  the 
briefis  of  both  parties.     Many  of  them  relate  to  costs  or  feet 


252  Burke  v.  Johnson.  [Kansas, 

in  civil  actions,  others  to  the  taxation  of  costs  in  actions  pend- 
ing, while  others  were  decided  with  reference  to  the  statutes 
of  the  state  where  the  decisions  were  rendered.  The  only 
authority  we  find  in  point  is  State  v.  Whithed,  3  Murph.  223. 
The  point  decided  was  submitted  in  the  original  case,  not  in 
an  action  by  the  witness  against  the  defendant.  It  was  this: 
where  a  defendant  had  been  tried  and  acquitted,  would  he  be 
liable  for  costs,  and  if  so,  what  costs?  The  court,  in  deciding 
the  case,  said:  — 

"  The  defendant  is  bound  to  pay  his  own  costs,  for  he  incurs 
them  by  calling  on  those  whose  services  he  thinks  he  needs, 
and  he  must  pay  them  for  labor  done  at  his  request." 

In  that  state,  as  in  this,  there  was  no  statute  concerning  the 
liability  of  the  defendant  to  his  own  witnesses,  when  he  had 
been  charged  with  a  crime  and  acquitted. 

We  believe  the  judgment  of  the  court  below  should  be 
aflSrmed. 


Witness  Fees.  —  Witness  subpoenaed  and  attending  court  in  good  faith 
can  recover  compensation  for  such  attendance,  and  reasonable  traveling  ex- 
penses: Gunnison  v.  Ounnison,  77  Am.  Dec.  764.  For  an  extended  discussion 
on  the  subject  of  compensation  of  witnesses,  see  note  to  Ela  v.  Knox,  88  Id. 
182.  Witness  without  the  state,  obeying  subpoena  in  a  criminal  action,  is 
entitled  to  his  per  diem  and  mileage  for  whole  distance  traveled  by  him: 
West/all  V.  Madison  Co.,  62  Iowa,  427.  Defendant,  under  indictment  in  one 
case,  made  a  witness  for  the  United  States  in  another  case,  is  entitled  to 
witness  fees:  In  re  Addis,  28  Fed.  Rep.  794.  Officers  of  defendant  corpora- 
tion, representing  such  corporation,  and  giving  testimony  in  a  suit  for  an 
accounting  by  corporation,  are  not  allowed  fees  as  witnesses:  Am.  Diamond 
ttc  Co.  V.  Sullivan  etc.  Co.,  23  Blatchf.  144.  Effect  of  pardon  on  judgment 
for  costs:  State  v.  Mooney,  21  Am.  Rep.  487;  Estep  v.  Lacy,  14  Id.  498. 


Burke  v.  Johnson. 

[37  KANSAS,  S37.] 

Judgment  is  Lien  upon  Actual,  not  the  apparent,  interest  of  the  de- 
fendant. 

Attachment  Lien  is  not  greater  than  that  created  by  a  judgment. 

Plaintiff  Levying  Attachment  is  not  Purchaser,  and  is  therefore  af- 
fected by  prior  transfers  of  which  he  has  no  notice. 

Contract  of  Purchase  Transfers  to  Grantee  the  equitable  right  to  the 
property,  subject  to  the  grantor's  lien  for  the  remaining  unpaid  purchase - 
money.  Under  contract  of  purchase,  grantee  can  compel  grantor  to 
make  conveyance  of  legal  title  when  the  purchase-money  is  paid. 

Interest  of  Vendor  Who  has  Made  Contract  of  Sale  and  received 
part  of  the  purchase-money  is  not  subject  to  attachment  or  execution. 


July,  1887.]  Burke  v.  Johnson.  253 

though  he  retains  the  legal  title.  The  vendee  may,  therefore,  safely  pay 
him  the  balance  of  the  purchase-money,  though  the  property  has,  in  the 
mean  time,  been  attached  under  a  writ  against  the  vendor. 
Attachment  under  Writ  against  Vendor  of  property  in  possession  of 
vendee,  under  contract  of  purchase,  is  neither  a  lien  on  the  property  nor 
on  the  unpaid  purchase-money. 

Action  by  Burke  against  Armstrong,  in  which  a  farm  and  a 
lot  of  stock  and  implements  thereon  were  attached  on  April  9, 
1884,  as  the  property  of  Armstrong,  f.  B.  Johnson  inter- 
pleaded, claiming  the  property.  He  had  purchased  it  on 
April  8,  1884,  at  which  time  he  received  a  written  contract  of 
sale  signed  by  Armstrong  by  his  agent.  Coons,  and  which 
recited  the  payment  of  $40  in  money,  and  $1,760  in  a  note  in 
favor  of  Armstrong,  due  one  day  after  date,  as  in  full  for  the 
farm  and  other  property.  The  receipt  stated  that  Johnson 
might  take  possession  at  once,  and  that  a  deed  would  be  given 
to  him  as  soon  as  it  could  be  obtained  from  Armstrong.  John- 
son took  possession  on  April  10th.  On  the  day  previous  he  had 
paid  his  note  of  $1,760,  in  ignorance  of  any  attachment  or 
claim  by  plaintiff,  and  received  a  conveyance  from  Armstrong 
and  wife  of  all  the  property.  These  facts  were  found  by  the 
court,  which  adjudged  that  Johnson  was  entitled  to  the  prop- 
erty.   Motion  for  new  trial  was  overruled. 

I.  0.  Pickering,  0.  A.  Bassett,  and  O.  C.  Clemens,  for  the 
plaintiff  in  error. 

A.  Smith  Devenney,  John  T.  Little^  and  Samuel  T.  SeatoUj  for 
the  defendant  in  error. 

By  Court,  Cloqston,  C.  But  one  question  is  presented,  that 
Ib,  Are  the  conclusions  of  law  sustained  by  the  findings  of  fact  ? 
This  question  must  be  determined  by  an  examination  of  the 
title  to  the  property  at  the  time  the  attachment  was  levied; 
and  if  Armstrong  at  that  time  had  a  leviable  interest  in  the 
property,  then  the  judgment  should  be  reversed.  The  facts  as 
found  by  the  court  show  that  the  legal  title  to  the  property  re- 
mained in  Armstrong,  subject  to  the  interest  and  rights  of 
Johnson  under  his  contract  of  purchase.  This  contract  trans- 
ferred to  Johnson  the  equitable  right  to  the  property,  subject 
alone  to  Armstrong's  lien  for  the  remaining  unpaid  purchase- 
money.  This  lien  amounted  to  a  security  only,  and  when  this 
purchase-money  was  paid  he  could  be  compelled  to  convey  the 
legal  title  to  the  equitable  owner  of  the  property:  JoneB  v.  Lap- 


254  Bdrke  v.  JoHNSOif.  [Kansas, 

ham,  15  Kan.  544;  Stevens  v.  Chadwick,  10  Id.  407;  15  Am. 
Rep.  348;  Orrick  v.  Durham,  79  Mo.  177;  Woodward  v.  Dean, 
46  Iowa,  499.  This  doctrine  has  been  fully  settled  by  this 
court.  In  Holden  v.  Garrett,  23  Kan.  98,  this  question  is  dis- 
cussed. In  that  case  the  question  was.  Is  .i  judgment  a  lien 
on  property,  where  the  legal  title  is  held  by  the  judgment 
debtor  and  the  equitable  title  or  interest  is  held  by  the  mort- 
gagee, so  as  to  defeat  the  mortgagee's  interest  in  the  property  ? 
It  was  held  in  that  case  that  the  judgment  was  not  a  lien  upon 
the  bare,  naked  legal  title,  the  equitable  title  being  held  by 
another.  The  statute  provides  that  judgments  shall  be  liens 
upon  the  real  estate  of  a  debtor  within  the  county.  It  was 
said:  "This  evidently  contemplates  actual  and  not  apparent 
ownership.  The  judgment  is  a  lien  upon  that  which  is  his, 
and  not  that  which  simply  appeared  to  be  his.  How  often  the 
legal  title  is  placed  in  one  party  when  the  equitable  title,  the 
real  ownership,  is  in  others!  Now,  if  the  judgment  is  a  Ken 
upon  all  that  appears,  it  will  cut  off  all  the  undisclosed  equi- 
table rights  and  interests.  To  extend  the  lien  to  that  which  is 
not,  but  appears  of  record  to  be  the  defendant's,  is  to  do  vio- 
lence to  the  language.  '  Real  estate  of  the  debtor,'  plainly 
means  that  which  is  in  fact  of  or  belonging  to  the  debtor": 
See  English  v.  Law,  27  Kan.  242;  Ransom  v.  Sargent,  22  Id. 
616;  Harrison  v.  Andrews,  18  Id.  541;  Northwestern  Forward' 
ing  Co.  v.  Mahaffey,  36  Id.  152. 

In  this  case,  the  attachment  binds  the  property  of  the  debtor 
from  and  after  the  levy.  The  writ  directs  the  officer  to  at- 
tach "  the  lands,  tenements,  goods,  and  chattels,  stock,  rights, 
and  credits,  moneys  and  effects  of  defendant  in  his  county, 
not  exempt  by  law";  and  when  so  attached,  a  lien  is  created. 
Now,  is  this  lien,  under  this  order  of  attachment,  greater  than 
that  created  by  a  judgment?  Surely  not.  A  judgment  is  a 
lien  upon  all  the  property  of  the  debtor,  subject  to  the  payment 
of  his  debts,  and  so  is  the  attachment  a  lien  upon  the  property 
of  the  debtor  for  the  same  purpose. 

Plaintiff  insists,  however,  that  at  the  time  of  the  levy  of  the 
attachment  he  had  no  notice,  actual  or  constructive,  of  the 
purchase  by  Johnson  of  the  property.  We  think  no  notice  was 
necessary.  The  plaintiff  in  error  lost  nothing  by  want  of  such 
notice.  He  had  parted  with  nothing;  was  not  a  purchaser  in 
good  faith,  relying  upon  the  constructive  notice  that  persons 
without  actual  notice  may  rely  upon;  he  was  trying  to  enforce 
a  claim,  and,  with  notice  or  without,  it  left  him  in  the  same 


July,  1887.]  Burke  v.  Johnson.  255 

condition.  If  he  had  been  a  purchaser  in  good  faith,  relying 
upon  a  legal  title  to  the  property,  he  would  be  protected. 

Plaintiff  again  insists  that  his  attachment  at  least  bound 
the  property  and  the  defendant  in  error  to  the  extent  of  the 
unpaid  residue  of  the  purchase-money,  and  that  because  John- 
son, the  defendant,  paid  the  remaining  purchase-money  after 
the  levy  of  the  attachment,  and  after  he  had  constructive 
knowledge  of  such  levy,  the  plaintiff  is  entitled  to  a  lien  and 
judgment  against  the  property  to  the  extent  of  that  unpaid 
purchase-money  at  the  time  of  the  levy.  The  court  found 
that  at  the  time  of  the  payment  of  this  purchase-money  the 
defendant  had  no  actual  knowledge  of  the  levy  of  the  attach- 
ment; that  he  paid  the  money  in  good  faith  upon  his  contract, 
and  accepted  the  title.  Under  such  circumstances,  the  attach- 
ment could  not  bind  the  purchase-money;  the  land  was  not 
subject  to  attachment  as  the  property  of  Armstrong,  and  con- 
sequently did  not  impart  such  constructive  notice  as  would 
bind  Johnson  in  the  payment  of  this  money:  French  v.  Debow, 
88  Mich.  708.  If  he  had  actual  notice  of  the  levy  of  the  at- 
tachment upon  the  property,  and  of  Armstrong's  fraud,  and 
with  this  knowledge  paid  the  purchase-money,  he  would  not 
be  protected:  See  Bush  v.  Collins,  S5  Kan.  535;  McDonald  v. 
Gaunt,  30  Id.  693;  Gollober  v.  Martin,  33  Id.  252. 

Counsel  ask  what  remedy  they  are  to  pursue  in  case  the 
attachment  will  not  bind  the  property  or  the  purchase-money, 
and  the  money  cannot  be  reached  by  garnishment.  In  answer 
we  can  only  say  that  all  we  have  to  deal  with  is  the  facts 
here  presented.  What  the  remedy  would  be  under  a  given 
statement  of  facts  will  not  be  determined  in  advance.  All  we 
do  say  and  all  we  are  called  upon  to  say  in  this  matter  is, 
that  the  attachment  created  no  lien  upon  the  property,  and 
could  not  operate  to  restrain  and  hold  the  unpaid  purchase- 
money  in  the  hands  of  the  defendant.  Good  faith  on  the  part 
of  Johnson  in  the  completion  of  the  contract  is  fully  shown  by 
the  findings  of  the  court.  Counsel,  however,  insist  that  the 
conclusions  drawn  from  these  findings  are  not  correct;  that 
the  fact  of  the  hurried  manner  of  the  purchase,  the  manner  of 
its  sale  in  bulk,  including  the  farm  and  personal  property,  the 
haste  of  the  transaction,  and  the  consideration  paid,  were  suffi- 
cient to  place  Johnson  upon  his  guard,  and  give  notice  of 
Armstrong's  fraudulent  intent.  If  these  things  are  badges  of 
fraud,  and  of  such  a  character  as  to  set  aside  this  transaction, 
we  think  it  would  unsettle  the  real  estate  transactions,  or  many 


256  Burke  v.  Johnson.  [Kansas. 

of  them,  in  Kansas.  This  property  was  regularly  left  in  the 
hands  of  a  real  estate  agent  for  sale;  had  remained  in  his 
hands  for  some  days;  he  had  offered  it  for  sale;  it  had  become 
known  in  the  neighborhood;  Johnson's  attention  was  called  to 
it  by  a  neighbor;  he  went  and  found  the  agent  and  owner, 
visited  the  land,  examined  the  records  to  see  that  the  title  was 
good,  made  an  offer  for  the  premises,  including  the  stock  and 
farming  implements  thereon,  and  this  offer  was  accepted,  and 
the  contract  drawn  on  the  same  day;  part  of  the  consideration 
was  paid,  and  the  transaction  completed  on  the  next  day. 
We  see  no  evidence  of  fraud  in  this.  Apparent  good  faith 
characterized  every  transaction  connected  with  it,  so  far  as 
the  defendant  was  concerned.  The  evidence  fully  shows  this, 
and,  further,  that  the  property  had  been  purchased  by  Arm- 
strong from  the  plaintiff  in  bulk,  and  purchased  as  an  entire 
transaction,  and  by  Armstrong  sold  in  the  same  way.  And 
now,  because  of  the  fraudulent  transaction  on  the  part  of  Arm- 
strong in  the  purchase  of  this  property  from  the  plaintiff,  and 
perhaps  the  sale  of  it  for  that  reason  to  Johnson,  we  are  asked 
to  set  aside  the  sale,  notwithstanding  the  fact  that  good  faith 
is  shown  on  the  part  of  the  defendant,  and  that  there  are  no 
circumstances  connected  with  the  transaction  calculated  to 
excite  the  suspicions  of  a  prudent  man,  or  warn  him  of  the 
fraudulent  intent  connected  therewith. 

It  is  recommended  that  the  judgment  of  the  court  below  be 
affirmed. 


Eqititable  Titlk  to  Real  Estate  Passes  fbom  Date  or  Contract  o» 
Sale:  Brewer  v.  Herhurt,  96  Am.  Dec.  582,  and  note.  As  to  when  such  con- 
tract is  binding,  see  Id.  In  equity,  vendee  of  land  under  contract  of  sale  is 
considered  a  trustee  of  vendor  for  payment  of  purchjise-money:  Waltcm  v. 
Hargrovea,  97  Id.  431;  Brewer  v.  Herhurt,  96  Id.  583.  Vendor  is  a  trustee 
for  purchaser:  Swepson  v.  Rouse,  6  Am.  Rep.  735.  Vendor  of  land  has 
lien  in  equity  for  unpaid  purchase-money:  Oee  v.  McMillan,  58  Id.  315. 
Requisites  for  creation  of  vendor's  lien:  Harvey  v.  Kelly,  93  Am.  Dec.  267. 
Against  whom  lien  of  vendor  of  real  estate  for  unpaid  purchase-money  exists: 
ElUa  v.  Temple,  94  Id.  200,  and  note.  Vendor's  lien  will  prevail  as  against 
vendee,  his  assigns  with  notice,  and  as  against  those  having  an  equitable 
title  only:  Walton  v.  Hargroves,  97  Id.  429.  Vendor's  lien  exists  in  Massa- 
chusetts only  when  expressly  so  stated:  Ahrerul  v.  Odiome,  19  Am.  Rep.  449. 
Whether  lien  for  purchase-money  of  land  revives  where  security  taken  proves 
worthless:  Madden  v.  Barnes,  30  Id.  703;  Fouch  v.  Wilson,  28  Id.  651;  Ken- 
drick  V.  Eggleston,  41  Id.  90.  Action  for  enforcement  of  vendor's  lien  for 
purchase-money  of  land  cannot  be  enforced  after  statutes  of  limitation  have 
run  against  note  given  for  payment  of  such  money:  Tate  v.  Hawkins,  50 
Id.  185.  Vendor's  lien  may  be  enforced  in  favor  of  one  who  is  not  grantor 
of  land:  Russell  v.  Watt,  93  Am.  Dec.  270.     Vendor's  lien  passes  with  notes 


July,  1887.]  Cunningham  v.  Jones.  25T 

given  for  purchase-money  of  land  to  his  assigns,  who  may,  in  equity,  subjecrt- 
the  land  to  the  payment  of  such  notes:  Robinson  v.  Harbour,  97  Id.  502,  and. 
note;  Perry  v.  Roberts,  95  Id.  689;  Sloan  v.  Campbell,  36  Am.  Rep.  493p 
Stevens  v.  Cliadwick,  15  Id.  348.  Contra:  Simpson  v.  Montgomery,  99  Am.. 
Dec.  228;  ffecht  v.  Spears,  11  Am.  Rep.  784;  Massey  v.  Gorton,  90  Am.  Dec 
287,  and  note  300.  Distinction  between  lien  of  vendor  after  conveyance^ 
which  is  absolute,  and  where  contract  of  sale  is  unexecuted:  Walton  v.  Har'- 
groves,  97  Id.  429,  note  433.  Existence,  priority,  and  enforcement  of  ven-- 
dor's  lien  for  purchase- money  of  land:  Walton  v.  Hargroves,  97  Id.  432; 
Fain  v.  Inman,  19  Am.  Rep.  577.  Express  reservation  of  vendor's  lien  in 
deed  amounts  to  an  equitable  mortgage:  Harvey  v.  Kelly,  93  Am.  Dec.  267. 
Rights  of  vendee  of  land  who  has  paid  for  land,  and  entered  into  possession' 
under  parol  purchase,  are  paramount  to  the  liens  of  subsequent  judgment, 
creditors  of  vendor:  Snyder  v.  Martin,  41  Am.  Rep.  670.  Equity  will  protect, 
equitable  rights  of  third  persons  existing  at  time  judgment  lien  attaches:  Id.;.. 
Freeman  on  Judgments,  sees.  356,  357.  Rights  of  attaching  creditors  of  ven- 
dor are  not  sifFected  by  unrecorded  deed  of  which  they  had  no  notice:  Carter- 
V.  Champion,  21  Am.  Dec.  695,  and  note.  As  to  lien  of  judgment  against^ 
vendor  of  land  when  vendee  is  in  possession,  see  Filley  v.  Duncan,  93  Id.  337» 
Such  lien  attaches  only  to  veudor's  actual  interest  in  land:  Id.  Payment 
of  purchase-money  by  vendee  after  judgment  against  vendor:  Id.,  and  ez^ 
tended  note  354. 


Cunningham  v.  Jones. 

[87  Kansas,  477.] 
Tax  Desd  Made  to  Attorney  at  Law  is  Void,  if  the  owner  of  the  land 

was  the  client  of  such  attorney  at  the  time. 
Attorney  at  Law  is  Forbidden  to  purchase  an  interest  in  the  thing  in 

controversy  adverse  to  his  client. 
Purchase  by  Attorney  is  not  voidable  merely,  but  void  absolutely  when 

it  is  of  an  interest  in  property  adverse  to  a  client  for  whom  he  ia  then 

acting. 

Ejectment  by  Cunningham  and  McCarty,  attorneys  at  law^ 
claiming  under  a  tax  deed  of  the  premises  in  controversy^ 
^Judgment  for  defendant. 

Cunningham  and  McCarty,  in  propria  persona,  for  the  plain- 
tiffs in  error. 

A.  M.  Mackey  and  Madden  Brothers,  for  the  defendant  ia 
error. 

By  Court,  Horton,  C.  J.  This  was  an  action  in  ejectment^ 
brought  by  the  plaintiffs;  trial  by  the  court  without  a  jury. 
A  general  finding  for  defendant  was  entered,  and  judgment 
rendered  thereon.  Plaintiffs  excepted,  and  bring  the  case- 
here.    The  facts  are  these:   On  May  3,  1877,  one   Charles 

AM.  St.  K«p..  Vol.  L  — 17 


.'SSS  Cunningham  v.  Jones.  [Kansas, 

Ahreudt  was  the  owner  of  the  land  in  controversy.  On  that 
•day  he  conveyed  to  Caroline  Schutt,  who  took  possession,  and 
-placed  her  deed  on  record.  On  June  21,  1877,  J.  G.  Farlin,  a 
creditor  of  Ahrendt,  attached  the  land  as  his  property.  Judg- 
ment was  rendered  against  Ahrendt,  and  Farlin  purchased 
the  land  at  sheriff's  sale.  H.  S.  Sook  obtained  title  to  the 
land  by  virtue  of  a  deed  from  Caroline  Schutt.  Subsequently 
Farlin  brought  his  action  in  ejectment  against  Sook,  claim- 
ing that  the  conveyance  from  Ahrendt  to  Caroline  Schutt,  of 
May  3,  1877,  was  void  as  against  his  creditors.  In  that  action 
it  was  held  that  H.  S.  Sook's  title  was  perfect,  and  that  the  at- 
tachment proceedings  of  Farlin  against  Ahrendt  did  not  avoid 
or  aflFect  his  title:  Farlin  v.  Sook,  30  Kan.  401;  46  Am.  Rep. 
100.  The  action  of  ejectment  of  Farlin  v.  Sook,  supra,  was 
brought  August  15,  1880,  and  judgment  was  rendered  Decem- 
ber 23,  1882.  During  all  the  litigation  between  Farlin  and 
Sook,  the  plaintiffs  in  this  action  were  practicing  attorneys  at 
law,  and  were  also  the  attorneys  of  Farlin.  On  September  2, 
1879,  while  Farlin  and  Sook  claimed  to  own  the  land  in  con- 
troversy, it  was  sold  for  delinquent  taxes,  and  bought  in  by 
the  county.  On  May  23,  1881,  during  the  pendency  of  the 
litigation  between  Farlin  and  Sook,  and  while  the  plaintiffs 
were  the  attorneys  of  Farlin  in  that  litigation,  tax  certificates 
of  the  land  in  controversy  were  assigned  to  W.  E.  Cunning- 
ham, one  of  the  plaintiffs,  who  subsequently  assigned  an  un- 
divided one  half  thereof  to  W.  T.  McCarty,  the  other  plaintiff. 
On  these  certificates  a  tax  deed  was  issued  September  13, 
1882.  The  plaintiffs  derive  their  alleged  title  from  the  tax 
deed. 

The  learned  trial  court  rendered  a  judgment  in  favor  of  the 
defendant,  upon  the  theory  that  plaintiff's  tax  deed  was  void 
because  they  were  the  attorneys  for  Farlin  during  all  the  time 
he  was  seeking  to  obtain  title  to  and  possession  of  the  land 
embraced  in  the  tax  certificates  and  tax  deed.  In  this  view 
we  fully  concur.  The  purchase  by  an  attorney  of  an  interest 
in  the  thing  in  controversy,  in  opposition  to  the  title  of  his 
client  during  litigation  concerning  the  same,  is  forbidden,  be- 
cause it  places  him  under  temptation  to  be  unfaithful  to  his 
trust:  Weeks  on  Attorneys,  sees.  274-277;  Wright's  EzW  v. 
Walker,  30  Ark.  44;  Wade  v.  Pettihone,  11  Ohio,  59;  37  Am. 
:Dec.  408;  Zeigler  v.  Hughes,  55  111.  288;  West  v.  Raymond,  21 
Jnd.  305;  Simpson  v.  Lamb,  7  El.  &  B.  90. 

Plaintiffs  concede  this  general  doctrine,  but  contend  that 


July,  1887.]  Cunningham  v.  Jones.  259 

their  purchase  under  the  tax  proceedings  is  not  absolutely 
void,  but  voidable  only  at  the  election  of  their  client;  that  as 
their  client  is  not  complaining  of  their  conduct,  no  one  else 
ought  to  be  heard  to  object.  It  is  undoubtedly  true  that  the 
purchase  of  the  plaintiffs  might  have  inured  to  the  benefit  of 
their  client  if  he  had  made  a  claim  therefor;  but  does  his 
failure  to  demand  the  benefits  of  their  purchase  condone  the 
offense,  and  render  their  title  so  acquired  valid?  We  think 
not.  An  attorney,  while  acting  for  his  client,  is  bound  to  the 
most  scrupulous  good  faith.  While  the  relation  of  an  attorney 
and  client  continues,  the  courts  will  carefully  and  zealously 
scrutinize  the  dealings  between  them,  and  guard  the  client's 
rights  against  every  attempt  by  the  attorney  to  secure  an  ad- 
vantage to  himself  at  the  expense  of  the  client:  Haverty  v. 
Haverty,  35  Kan.  438. 

After  the  purchase  by  the  plaintiffs  of  their  title  under  the 
tax  proceedings,  their  interest  was  antagonistic  to  that  of  their 
client.  Therefore  the  purchase  by  them  was  such,  we  think, 
"  as  might  have  betrayed  their  judgment,  and  endangered 
their  professional  fidelity."  It  is  contrary  to  the  policy  of  the 
law,  and  also  contrary  to  the  principles  of  equity,  to  permit 
an  attorney  at  law  to  occupy  at  the  same  time  and  in  the  same 
transaction  the  antagonistic  and  wholly  incompatible  position 
as  adviser  of  his  client  concerning  a  pending  litigation  threat- 
ening the  title  to  his  property,  and  that  of  purchaser  of  such 
property,  in  opposition  to  the  title  of  his  client.  Some  of  the 
courts  have  gone  so  far  as  to  hold  that  where  an  attorney  pur- 
chases from  his  client  the  subject  of  litigation,  he  must,  before 
doing  so,  divest  himself  of  the  character  of  attorney,  so  that 
his  former  client  may  deal  with  him  as  a  stranger:  Rogers  v. 
Marshall,  3  McCr.  76-95.  Public  policy  seems  to  demand 
that  there  should  be  no  temptation  on  the  part  of  any  one  oc- 
cupying the  important  relation  of  an  attorney  to  make  private 
gain  out  of  the  subject-matter  of  his  professional  employment, 
and  therefore  we  think  that  the  purchase  by  plaintiffs  of  the 
premises  in  dispute  pending  litigation  was  as  to  them  wholly 
void. 

The  judgment  of  the  district  court  will  therefore  be  af- 
firmed. 


ATT0R5KT    MUST    EXXBCISI    UtVOST    GoOD    FaTTH   TOWARD   HIS   CuXItT: 

KUUnrj  V.  Shau),  91  Am.  Dec.  652,  and  note;  Henry  v.  Raiman,  64  Id.  703, 
and  note.  Attorney  cannot  buy  an  outstanding  title  to  land  against  the  in- 
Ureata  of  his  client;  such  a  purchase,  whether  made  during  or  after  termi- 


260  Venabi.e  v.  Dutch.  [Kansas, 

nation  of  hia  employment,  will  inure  to  benefit  of  his  client,  or  to  such 
client's  assigns:  Id.;  Merry  man  v.  Euler,  43  Am.  Rep.  564.  Purchase  by  an 
attorney  of  land  of  his  client,  under  an  execution  sale,  will  pass  to  the  inter- 
ests of  his  client:  Taylor  v.  Young,  56  Mich.  285.  If  client  wishes  to  take 
advantage  of  such  a  purchase,  he  must  do  so  within  a  reasonable  time:  Ward 
V.  Bromn,  87  Mo.  468.  Such  purchase  is  good,  if  made  in  good  faith,  and  ia 
not  against  the  interest  of  client:  Hyama  v.  Herndon,  36  La.  Ann.  879. 
Whether  purchase  by  an  attorney  from  hia  client  voidable,  see  Laclede  Bank 
V.  Keeler,  109  111.  385;  Wharton  v.  Hammond,  20  Fla.  934;  Lane  v.  Black,  21 
W.  Va.  617.  Bargain  between  attorney  and  client,  which  is  an  advantage  to 
attorney,  must  be  shown  by  him  to  be  fair  and  equitable,  free  from  misrep- 
resentation or  concealment,  and  attorney  must  show  that  hia  client  was  fully 
cognizant  of  his  interests  and  of  the  effect  of  such  bargain:  KisUng  v.  Shaw, 
91  Am.  Dec.  646. 

Gift  from  Client  to  Attornky.  —  Burden  of  proof  on  latter  to  show 
that  there  was  no  undue  influence:  WJiipple  v.  Barton,  63  N.  H.  613. 

Contracts  between  Attorney  and  Client  Courts  will  Scrutinize: 
De  Louis  v.  Meek,  50  Am.  Dec.  491;  Miles  v.  Irwin,  16  Id.  623;  Lecatt  v. 
Bailee,  29  Id.  249;  Dickenson  v.  Bradford,  31  Am.  Rep,  23;  Oruby  v.  Smith, 
13  HI.  App.  43.  Supervision  of  courts  over  professional  conduct  of  membert 
of  the  bar:  Thallhehner  v.  Brinckerhof,  15  Am.  Dec.  309,  note  321. 


YeNABLE    V.    DtJTOH. 

[87  Kansas,  516.] 

CtoUNTBEOLAlM    18  DEMAND  OP    SOMETHING  WHICH    OF  RiOHT    BELONGS  TO 

Defendaitt,  in  opposition  to  the  right  of  the  plaintiff.  It  may  also 
be  defined  as  a  claim  which,  if  eatablished,  will  defeat  or  qualify  a  judg* 
ment  to  which  plaintiff  would  otherwise  be  entitled. 

OoxmrEEOLAiM  IN  Ejectment.  —  An  answer  by  defendant  in  ejectment  set- 
ting up  a  tax  title,  and  also  a  judgment  in  hia  favor  againat  plaintiff 
quieting  hia  title,  is  a  counterclaim. 

Burden  of  Proyinq  Facts  Stated  im  his  Ck>uNTEB0LAiM  rests  npon  the 
defendant. 

Judgment  Quieting  Title,  Founded  on  Servicb  of  Summons  by  publica- 
tion, will  be  respected  and  enforced  in  thia  state,  as  a  complete  divesti- 
ture of  the  title  of  the  judgment  defendant. 

Ejectment  by  Venable  against  Dutch.  Judgment  for  de- 
fendant. 

A.  J.  Utley,  for  plaintiflf  in  error. 

8.  8.  Kirkpatrick,  for  defendant  in  error. 

By  Court,  Holt,  C.  This  action  was  tried  in  the  Wilson 
district  court,  at  the  May  term,  1885.  Plaintiff  in  error, 
plaintiff  below,  filed  a  petition  for  ejectment  in  the  ordinary 
form.  The  defendant  answered  by  a  general  denial,  and  also 
claimed  title  under  a  tax  deed.     The  first  trial  was  had,  and 


July,  1887.]  Venable  v.  Dutch.  261 

a  second  trial  was  granted  under  the  statute.  At  the  time  of 
the  second  trial,  plaintiff  moved  to  strike  out  that  part  of  de- 
fendant's answer  setting  up  a  title  in  himself  by  a  tax  deed, 
which  motion  was  overruled  by  the  court.  Plaintiff  then  de- 
murred to  that  portion  of  defendant's  answer,  which  was 
overruled;  whereupon  he  asked  leave  to  dismiss  his  action 
without  prejudice  to  a  future  action,  which  was  allowed,  but 
the  court  permitted  the  defendant  to  retain  his  answer  for 
trial.  Plaintiff  then  filed  a  general  denial  in  reply,  when  the 
defendant  asked  leave  to  amend  his  answer  by  alleging  that 
he  had  quieted  his  title  to  the  land  in  question,  by  a  judgment 
duly  obtained  by  publication  in  the  district  court  against  the 
plaintiff.  To  this  new  cause  of  action  phiintiff  demurred, 
which  demurrer  was  by  the  court  overruled.  A  jury  being 
waived,  the  issue  was  tried  by  the  court,  which  rendered 
judgment  for  the  defendant.  This  judgment  plaintiff  brings 
here  for  review. 

Plaintiff  assigns  for  error,  first,  that  the  second  portion  of 
defendant's  answer  should  have  been  stricken  out,  for  the  rea- 
son that  everything  which  might  have  been  proven  under  it 
might  have  been  proven  under  the  general  denial.  Under 
that  portion  of  the  answer  which  plaintiff  calls  a  cross-bill, 
the  defendant  asks  for  aflBrmative  relief.  Our  statute  provides 
that  a  defendant  may  set  up  in  his  answer,  in  addition  to  a 
general  denial,  any  new  matter  setting  forth  a  defense,  a  coun- 
terclaim, set-off,  or  right  of  relief  concerning  the  subject  of 
the  action.  But  the  plaintiff  says  that  when  he  dismissed 
his  cause  of  action,  that  the  defendant's  cause  of  action  should 
have  followed  it,  because  the  second  part  of  defendant's  claim 
was  not  a  counterclaim,  and  cites  section  398  of  the  Civil  Code 
to  show  that  the  defendant  has  a  right  to  proceed  to  the  trial 
of  his  cause  only  when  he  has  filed  a  set-off  or  counterclaim, 
after  the  plaintiff  has  dismissed  his  cause  of  action.  Plaintiff 
contends  that  the  second  portion  of  defendant's  answer  is  not, 
under  our  statutes,  a  counterclaim.  The  ordinary  meaning 
of  counterclaim  is  a  demand  of  something  which  of  right 
belongs  to  the  defendant  in  opposition  to  the  right  of  the 
plaintiff.  It  is  alfo  defined  as  a  claim  which,  if  established, 
will  defeat  or  in  some  way  qualify  a  judgment  to  which  plain- 
tiff is  otherwise  entitled;  it  is  the  claim  of  a  defendant  to 
recover  from  a  plaintiff  by  setting  up  and  establishing  any 
cross-demand  which  may  exist  in  his  favor  as  against  plaintiff. 
But  the  plaintiff,  in  an  argument  ingenious  rather  than  sound, 


262  Venable  v.  Dutch.  [Kansas, 

claims  that  there  is  a  limited  meaning  of  the  word  "counter- 
claim "  given  by  our  statute.  By  section  95  of  the  Civil  Code, 
a  counterclaim  must  be  one  existing  in  favor  of  a  defendant 
and  against  a  plaintiflf,  arising  out  of  the  contract  or  transac- 
tion set  forth  in  the  petition  as  the  foundation  of  plaintiff's 
claim,  or  connected  with  the  subject  of  the  action. 

The  subject  of  plaintiff's  action  is  his  title  to  the  land,  and 
the  adverse  possession  of  defendant.  The  defendant  claims 
that  he  is  in  possession  lawfully,  as  the  owner  thereof,  by  vir- 
tue of  a  judgment  quieting  his  title  against  plaintiff.  We 
think  that  the  claim  in  the  answer  is  connected  with  the  sub- 
ject of  plaintiff's  action:  Jarvis  v.  Peck,  19  Wis.  74;  Eastman 
v.  Linn,  20  Minn.  433. 

In  actions  similar  to  the  one  we  are  now  considering,  where 
a  plaintiff  brought  an  action  against  a  defendant  in  ejectment, 
and  claimed  to  be  the  owner  in  fee-simple,  and  that  defendant 
wrongfully  kept  him  out  of  possession,  and  such  defendant 
alleged  ownership  in  himself,  and  stated  that  the  plaintiff 
made  some  claim  to  the  land,  and  asked  that  his  title  be 
quieted  against  him,  this  court  has  repeatedly  denominated 
such  answer  a  counterclaim:  Allen  v.  Dmiglass,  29  Kan.  412; 
Sale  V.  Bugher,  24  Id.  432. 

After  plaintiff  dismissed  his  cause  of  action,  the  defendant, 
under  his  answer  seeking  to  quiet  his  title,  is  virtually  plain- 
tiff in  all  things  save  in  name;  the  facts  alleged  in  his  answer 
must  be  sufficient  to  constitute  a  cause  of  action,  and  the  re- 
lief to  which  he  is  entitled  must  be  properly  demanded;  the 
burden  of  proof  is  upon  him,  and  he  must  establish  his  cause 
of  action  by  a  preponderance  of  testimony  before  he  is  entitled 
to  a  judgment  in  his  favor;  being  in  the  place  of  a  plaintiff, 
and  subject  to  his  burdens,  he  also  possesses  his  rights,  and 
therefore  it  is  within  the  discretion  of  the  court  to  allow  him 
to  amend  his  pleading  by  adding  another  count.  In  this 
case,  the  court  properly  allowed  such  an  amendment:  Allen  v. 
Douglass,  Sale  v.  Bugher,  supra;  Pomeroy's  Remedies,  sec.  738. 

By  far  the  gravest  question  arising  in  this  case  is,  whether 
a  judgment  in  favor  of  one  in  possession  of  real  property,  ob- 
tained upon  service  by  publication  only,  is  sufficient  to  divest 
a  defendant  in  such  action  of  his  interest  therein.  If  we  con- 
sult our  statute  alone,  we  find  ample  authority  for  such  pro- 
cedure. Section  595  of  the  Civil  Code  provides  that  an  action 
may  be  brought  by  any  person  in  possession  of  real  property 
against  any  person  who  claims  an  interest  or  estate  therein 


July,  1887.]  Venable  v.  Dutch.  263 

adverse  to  him,  for  the  purpose  of  determining  such  adverse 
estate  or  interest;  and  when  the  person  who  claims  such  ad- 
verse interest  resides  out  of  the  state,  and  the  relief  prayed 
for  consists  wholly  or  partly  in  excluding  him  from  any  inter- 
est therein,  such  determination  may  be  had  after  a  service  by 
publication  alone:  Civil  Code,  sec.  72.  A  sovereign  state  ought 
to  have  control  over  the  real  property  within  its  limits,  and  its 
courts  have  the  right  to  decide  all  questions  relating  to  the 
titles  to  the  same.  By  section  400  of  the  code  it  is  provided 
that  when  a  judgment  is  rendered  for  a  conveyance,  release,  or 
acquittance,  and  the  party  against  whom  the  judgment  is  ren- 
dered does  not  comply  therewith  by  the  time  appointed,  such 
judgment  shall  have  the  same  operation  and  effect  as  though 
the  defendant  had  complied  with  the  judgment  of  the  court. 
Generally,  equity  jurisdiction  is  exercised  in  personam,  and 
upon  that  theory  some  of  the  states  have  provided  by  statute 
that  if  the  defendant  is  not  found  within  the  state,  or  refuses 
to  make  or  cancel  a  deed  to  land  within  the  jurisdiction  of  the 
court,  it  can  be  done  in  his  behalf  by  a  trustee  appointed  by 
the  court  for  that  purpose.  The  last  part  of  section  400  pro- 
vides that  the  sheriff  may  perform  such  duties  as  such  trustee, 
but  the  instrument  so  executed  by  him  under  the  judgment  of 
the  court  stands  on  no  higher  plane  than  a  simple  judgment, 
and  is  no  more  available  as  a  conveyance,  release,  or  acquit- 
tance than  such  judgment.  The  appointment  by  the  court  of 
a  trustee  to  execute  or  cancel  a  deed  for  defendant,  when  he 
has  not  been  brought  within  the  jurisdiction  of  the  court,  dif- 
fers only  in  form  from  a  judgment  that  is  intended  to  accom- 
plish the  same  object  of  itself.  One  is  done  directly,  the  other 
indirectly.  Our  statute  attempts  to  do  away  with  such  mere 
formal  distinctions. 

Ordinarily  it  would  be  within  the  power  of  the  state  to  sub- 
Btitute  notice  by  publication  or  otherwise,  for  personal  service 
against  non-residents.  It  will  be  noticed  that  it  is  provided 
in  section  72  of  the  Civil  Code  for  a  notice  by  publication,  when 
the  relief  sought  consists  in  excluding  defendant  from  any  in- 
terest in  the  land  then  in  controversy.  The  notice  does  not 
specify  that  the  defendant  shall  perform  any  act,  execute  any 
conveyance,  acquittance,  or  release;  it  simply  gives  notice  that 
a  judgment  will  be  rendered  which  shall  exclude  him  from 
any  interest  in  the  land. 

Service  by  publication,  in  conformity  to  our  statutes,  has 
been  held  sufficient  by  this  court,  and  judgment  and  sales 


^64  Venable  v.  Dutch.  [Kansas, 

^thereon  have  now  become  a  settled  rule  of  property  in  this 
-state:  Gillespie  v.  Thomas,  23  Kan.  138;  Rowe  v.  Palmer,  29 
Id.  337.  In  Hart  v.  Samson,  110  U.  S.  151,  Mr.  Justice  Gray, 
speaking  for  the  court,  says:  "The  courts  of  the  state  might 
perhaps  feel  bound  to  give  effect  to  the  service  directed  by  its 
statutes." 

In  this  action  we  not  only  have  the  direction  of  the  statutes, 
"but  also  long-acquiesced-in  decisions,  which  we  would  be  com- 
pelled to  disregard  if  we  should  hold  the  notice  of  publication 
insufficient  in  the  former  action  of  Dutch  to  quiet  his  title 
against  Venable.  In  this  action,  plaintiff  in  error  came  into  a 
•court  of  this  state  to  seek  relief,  and  he  ought  to  be  governed 
•and  his  claims  to  the  land  decided  by  the  established  rules  of 
property  of  the  court  whose  aid  he  invoked;  he  asks  that  we 
•overthrow  the  long-established  line  of  decisions,  and  hold  our 
statutes  void,  in  order  to  render  a  judgment  in  his  favor.  We 
;are  unwilling  to  so  decide. 

We  recommend  that  the  judgment  of  the  court  below  be 
affirmed. 


Nature,  Definition,  and  Extent  of  Coctnteiiolaim:  Woodruff  v.  Oar- 
tier,  89  Am.  Dec.  477,  and  extended  note.  Discontinuance  of  action  after 
Answer  of  counterclaim:  McLeod  r.  Bertschy,  14  Am.  Rep.  755.  Burden  of 
proof  as  to  new  matter  set  up  by  defendant  in  answer  to  a  bill  in  chancery: 
'Cooper  V.  Tyler,  95  Am.  Dec.  442. 

Constructive  Notice  by  publication  where  defendant  is  non-resident: 
Mlarria  v.  Pullman,  25  Am.  Rep.  416.  Service  by  publication,  requisites  of: 
McOdhen  v.  Carr,  71  Am.  Dec.  421,  and  note  427.  Jurisdiction  of  defendant 
is  obtained  by  service  of  process  on  such  defendant  or  on  his  property  within 
the  jurisdiction  of  the  court:  Sturgis  v.  Fay,  79  Id.  440.  Judgments  are  con- 
clusive between  the  same  parties  where  the  same  issues  are  involved:  Slocum 
V.  De  Lizardi,  99  Id.  740 ;  F^ishy  v.  Parkkurst,  96  Id.  503;  Wright  v.  Dun- 
.fling,  92  Id.  257;  Joyce  v.  McAvoy,  89  Id.  172,  and  note;  Bera  v.  Bines,  89 
Jd.  598,  note;  HecUh  v.  Frackleton,  91  Id.  405,  note  407;  Footman  v.  Stetson, 
3a1  Am.  Rep.  639;  Caperton  v.  Schmidt,  85  Am.  Dec.  187,  and  note. 

Judgment  Quieting  Title.  —  This,  so  far  as  we  have  observed,  is  the 
^rst  decision  in  a  state  court,  since  Hart  v.  Samson,  110  U.  S.  151,  discuss- 
ing the  questions  apparently  involved  in  the  latter  case.  In  that  case,  a  rec- 
<ord  was  oflFered  in  evidence  against  Hart  from  which  it  appeared  that  a  statti 
-court  had  adjudged  that  he  had  no  title  to  the  land  in  question.  The  pro- 
-ceedings  on  which  the  record  was  based  were  in  equity,  and  the  decree  de- 
.clared  that  "several  deeds,  in  the  plaintiffs'  petition  mentioned,  be  and  the 
£ame  are  hereby  annulled  and  canceled,  and  for  naught  held,  and  the  cloud 
thereby  removed."  The  service  of  summons  had.  however,  been  made  by 
ftnblication,  as  against  the  defendant.  Hart,  he  being  a  non-resident  of 
>the  state.  The  decree,  so  far  as  it  purported  to  affect  Hart's  title,  was  ad- 
judged to  be  a  nullity,  because  the  court  had  no  jurisdiction  over  him  while 
^he  was  a  non-resident  of  the  state.     The  court  said:  "Generally,  if  not  noi' 


July,  1887.]  Venable  v.  Dutch.  265 

versally,  equity  jurisdiction  is  exercised  in  personam,  and  not  in  rem,  and 
depends  upon  the  control  of  the  court  over  the  parties  by  reason  of  their 
presence  or  residence,  and  not  upon  the  place  where  the  land  lies  in  regard 
to  which  relief  is  sought.  Upon  a  bill  for  the  removal  of  a  cloud  upon  a 
title,  as  upon  a  bill  for  the  specific  performance  of  an  agreement  to  convey, 
the  decree,  unless  otherwise  expressly  provided  by  statute,  is  clearly  not  a 
judgment  in  rem,  establishing  a  title  in  land,  but  operates  in  personam  only, 
by  restraining  the  defendant  from  asserting  his  claim,  and  directing  him  to 
deliver  up  his  deed  to  be  canceled,  or  to  execute  a  release  to  the  plaintiff. 
It  would  doubtless  bo  within  the  power  of  the  state  in  which  the  land  liea 
to  provide  by  statute  that  if  the  defendant  is  not  within  the  jurisdiction,  or 
refuses  to  make  or  to  cancel  a  deed,  this  should  be  done  on  his  behalf  by  a 
trustee  appointed  by  the  court  for  that  purpose.  But  in  such  a  case,  aa  in 
the  ordinary  exercise  of  its  jurisdiction,  a  court  of  equity  acts  in  personam^ 
by  compelling  a  deed  to  be  executed  or  canceled  by  or  on  behalf  of  a  party. 
It  has  no  inherent  power,  by  mere  force  of  its  decree,  to  annul  a  deed,  or  to 
establish  a  title.  In  the  judgment  in  question,  no  trustee  to  act  in  behalf  of 
the  defendant  was  appointed  by  the  court,  nor  have  wo  been  referred  to  any 
statute  authorizing  such  an  appointment  to  be  made.  The  utmost  effeob 
which  can  be  attributed  to  the  judgment,  as  against  Hart,  is  that  of  an  ordi- 
nary decree  for  the  removal  by  him,  as  well  aa  by  the  other  defendants,  of  a 
cloud  upon  the  plaintiff 's  title.  Such  a  decree,  being  in  personam  merely,  can 
only  be  supported  against  a  person  who  is  nob  a  citizen  or  resident  of  th« 
state  in  which  it  was  rendered,  by  actual  service  upon  him  within  its  juris- 
diction; and  constructive  service  by  publication  in  a  newspaper  is  not  suffi- 
cient. The  courts  of  the  state  might,  perhaps,  feel  bound  to  give  effect  to 
the  service  made  as  directed  by  its  statutes;  but  no  court  deriving  its  au- 
thority from  another  government  will  recognize  a  merely  constructive  service 
as  bringing  the  person  within  the  jurisdiction  of  the  court.  The  judgment 
would  be  allowed  no  force  in  the  courts  of  any  other  state;  and  it  is  of  no 
greater  force,  as  against  a  citizen  of  another  state,  in  a  court  of  the  United 
States,  though  held  within  the  state  in  which  the  judgment  was  rendered." 

This  language  of  the  supremo  court  of  the  United  States  goes  very  far 
towards  denying  to  any  state  the  power  to  enact  any  statute  which  will 
enable  one  of  its  citizens  to  compel  a  non-resident  to  litigate  an  adverse 
claim  of  title  held  by  him.  This  result  is  very  unfortunate,  for  it  seems  that 
every  state  ought  to  be  able  to  exercise  such  jurisdiction  over  all  real  prop- 
erty within  its  territory  as  will  enable  its  courts  to  determine  all  questions 
relating  to  the  title  thereto.  The  mere  non-residence  of  the  claimant  ought 
not  to  enable  him  to  carry  with  him  the  jurisdiction  over  the  land  itself. 
This  is,  practically,  the  effect  of  the  present  state  of  the  law  as  expounded  by 
the  national  courts.  It  is  true  that  in  the  principal  case  the  court  acted  upon 
the  suggestion  in  Hart  v.  Samson,  tupra,  that  "the  courts  of  the  state  might 
perhaps  feel  bound  to  give  efifect  to  the  service  made  as  directed  by  its  stat- 
utes." But  if  it  be  true,  which  we  very  much  doubt,  that  a  state  court  is 
justified  in  giviag  to  the  judgments  of  its  courts  an  effect  which  is  denied 
them  in  the  national  courts,  then  non-resident  claimants  will  avoid  thia 
result  by  keeping  their  litigation  away  from  the  state  court. 

It  will  bo  observed  that  the  opinion  in  Hart  v.  Samson,  110  U.  S.  151, 
proceeded  principally  on  the  ground  that  the  jurisdiction  in  chancery  in  this 
cUm  of  cases  was  in  personam,  and  that  the  action  of  the  court  must  there- 
fore necessarily  be  restricted  to  persons  who  were  citizens  or  residents  of  the 
state.     In  several  of  the  states  an  action  may  be  brought  by  any  person 


266  St.  Louis  etc.  R.  R.  Co.  v.  Irwin.  [Kansas, 

against  any  other  person  who  claims  an  interest  in  real  property  adversely 
to  the  former.  There  is  nothing  in  the  scope  or  nature  of  these  actions  to 
indicate  that  the  courts  in  hearing  and  determining  them  is  exercising  a  chan- 
cery jurisdiction,  and  it  is  possible  that  the  judgments  therein  rendered  are 
not  within  the  rule  laid  down  in  Hart  v.  Sa)nson,  supra.  At  the  same  time 
these  actions  have  none  of  the  indicia  of  proceedings  in  rem,  and  we  fear  that 
judgments  therein,  if  against  non-residents,  must  be  declared  ine£fectual  for 
want  of  authority  over  the  defendants. 


St.  Louis,  Fort   Scott,  and  Wichita  Railroad 
Company  v.  Irwin. 

[37  Kansas,  70L1 

Duty  op  Railroad  Compant  to  its  Employees  requires  it  to  use  auch  care 
in  providing  tracks  and  bridges  that  it  will  be  reasonably  safe  for  its 
employees  to  discharge  the  duties  they  are  called  on  to  perform. 

Railroad  Company,  for  Injuries  Caused  by  Bridge,  the  covering  of 
which  is  so  low  as  to  strike  an  employee  in  the  discharge  of  his  duties, 
is  answerable  to  him  in  damages,  if  he  had  no  knowledge  of  its  dangerous 
nature. 

Employees  of  Railroad  Company  should  not  be  Subjected  to  unneces- 
sary perils  from  structures  over  and  along  the  track  which  might  easily 
be  changed  or  removed. 

Employee  of  Railroad  Company  Assumes  Ordinary  risks  incident  to  the 
service;  and  if  he  enters  or  continues  in  such  service  with  a  knowledge  of 
danger,  and  without  objection,  he  must  abide  the  consequence. 

Employee  op  Railroad  Company  is  not  Required  to  Know  All  Defects 
AND  Obstructions  of  the  road  on  which  he  is  employed. 

Whether  Conductor  op  Train  Uses  Ordinary  Care  in  standing  on  a 
caboose  for  the  purpose  of  giving  necessary  signals  while  his  train  is 
passing  under  a  bridge,  is  a  mixed  question  of  law  and  fact. 

Improper  Language  op  Counsel  in  Argument  of  Cause  caimot  be  re- 
viewed in  this  court,  unless  attention  was  called  to  it  in  the  trial  court, 
and  a  ruling  had  upon  it  there. 

Action  by  W.  H.  Irwin  to  recover  damages  for  personal  in- 
juries sustained  by  him  while  serving  defendant  as  freight 
conductor  in  passing  over  a  bridge.  The  defects  in  the  bridge 
appear  in  the  opinion.  The  cause  was  tried  with  a  jury  which 
awarded  plaintiflf  twelve  thousand  dollars. 

/.  H.  Richards,  and  Harris,  Harris,  and  Vermilion,  for  the 
plaintiff  in  error. 

Houston  and  Bentley,  for  the  defendant  in  error. 

By  Court,  Johnston,  J.  It  is  earnestly  contended  by  the 
plaintiff  in  error  that  the  evidence  is  insufficient  to  sustain 
the  finding  that  the  railroad  company  was  negligent  in  the 


July,  1887.]     St.  Louis  etc.  R.  R.  Co.  v.  Irwin.  267 

construction  and  maintenance  of  the  bridge  whicli  occasioned 
the  injury;  and  that  even  if  the  company  was  negligent,  the 
testimony  shows  that  at  the  time  of  the  accident  Irwin  was 
not  exercising  that  prudence  and  care  which  was  required  of 
him,  and  hence  ought  not  to  recover.  The  testimony  shows 
that  the  bridge  in  question  is  built  over  the  Walnut  River 
about  one  half  mile  from  the  station  at  El  Dorado.  It  was  so 
constructed  that  the  top  beams  were  sufficiently  high  to  per- 
mit a  person  standing  on  the  center  of  the  top  of  a  box-car  or 
caboose  to  pass  through  without  colliding  with  these  timbers, 
but  there  were  braces,  extending  from  the  posts  of  the  bridge 
to  the  top  beams,  which  were  only  about  four  feet  above  the 
outer  edge  of  the  top  of  such  cars.  A  person  of  ordinary 
height  standing  in  the  center  of  a  car  could  pass  through  the 
bridge  with  safety,  but  was  in  danger  of  being  swept  from  the 
cars  if  he  stepped  a  foot  or  two  from  the  center.  Irwin  was 
the  conductor  of  a  freight  train,  and  was  standing  on  the  top 
of  the  caboose  at  the  side  of  the  cupola  when  he  was  struck 
by  one  of  these  overhead  braces.  The  brace  was  so  low  that 
it  struck  him  below  the  shoulders,  and  according  to  the  tes- 
timony of  one  witness,  it  was  only  three  feet  and  nine  inches 
above  the  outer  edge  of  the  roof  of  the  caboose.  It  was  the 
duty  of  the  railroad  company  to  use  ordinary  care  in  pro- 
viding tracks  and  bridges  that  would  be  reasonably  safe  for 
its  employees  in  discharging  the  duties  they  were  called  on 
to  perform.  Brakemen  and  conductors  of  freight  trains  are 
frequently  required  to  be  on  the  top  of  the  cars,  both  night 
and  day.  The  hazards  of  such  positions  are  great,  and  the 
duty  of  the  company  required  that  its  employees  should  not 
be  subjected  to  unnecessary  perils  from  structures  over  and 
along  the  track  which,  by  proper  diligence  on  the  part  of  the 
company,  might  be  changed  or  removed.  The  necessity  for 
a  contrivance  as  dangerous  as  the  overhead  structure  of  this 
bridge  was  is  not  apparent.  Indeed,  it  seems  to  have  been 
otherwise  planned,  but  was  botched  in  the  construction.  E.  S. 
Farnsworth,  a  witness  for  the  company,  and  the  engineer  who 
furnished  the  plan  for  the  bridge,  stated  that  it  was  intended 
to  be  a  standard  Howe  truss  bridge  in  every  particular,  and 
that  it  was  constructed  of  the  usual  height  and  width,  and 
that  the  braces  were  a  necessary  part  of  the  bridge,  and  that 
it  was  customary  to  put  them  in  bridges  in  the  same  position 
and  place  as  they  were  placed  in  the  bridge  at  El  Dorado. 
However,  he  stated  that  if  the  bridge  was  built  according  to 


1 


268  St.  Louts  etc.  R.  R.  Co.  r.  Irwin.         [Kansas, 

the  plans,  he  could  not  conceive  how  an  employee  on  the 
caboose  of  a  train  could  be  struck  by  one  of  these  braces; 
and  he  further  stated  that  it  would  be  more  than  six  feet  from 
the  outer  top  edge  of  an  ordinary  caboose  to  the  braces  in  the 
bridge.  F.  W.  Tanner,  the  general  foreman  of  bridges  for 
the  railroad  company,  testified  that  he  had  had  fifteen  years' 
experience  in  building  and  constructing  railroad  bridges.  He 
was  asked:  "  Could  these  braces  in  a  bridge  properly  con- 
structed with  due  regard  to  the  safety  of  employees  be  low 
enough  to  strike  a  man  of  ordinary  size  on  top  of  a  car  of 
ordinary  height  and  width?"  He  answered:  "They  should 
not,  providing  the  car  was  on  the  track  and  passing  through 
the  bridge  as  it  should  do."  James  Standard,  an  assistant 
superintendent  of  bridges  for  the  railroad  company,  of  nine- 
teen years'  experience  in  the  building  and  construction  of 
railroad  bridges,  stated  that  a  railroad  bridge  should  be  so 
constructed  that  there  would  be  no  danger  of  a  man  striking 
the  braces  on  any  part  of  an  ordinary  car. 

This  testimony  would  indicate  that  it  was  neither  necessary 
nor  intended  in  the  first  instance  that  the  bridge  should  be  so 
low  as  to  be  dangerous  for  employees  to  stand  erect  upon  the 
top  of  any  of  the  ordinary  cars.  It  cannot  be  doubted  that 
these  facts  were  suflBcient  to  go  to  the  jury  on  the  unsafe  and 
unsuitable  character  of  the  bridge,  and  also  sufficient  to  sus- 
tain the  finding  of  the  company's  negligence  in  so  constructing 
and  maintaining  it.  With  reference  to  such  structures,  Mr. 
Beach,  in  his  work  on  contributory  negligence,  page  364,  says: 
*'  If  the  roof  or  overhead  structure  of  the  bridge  is  so  low  that 
it  will  strike  a  brakeman  standing  erect  on  the  top  of  his  train, 
it  is  an  essentially  murderous  contrivance,  and  it  is  not  cred- 
itable to  our  jurisprudence  that  such  buildings  are  not  declared 
a  nuisance.  There  is  nothing  in  the  reports  worse  than  the 
cases  that  sustain  the  railway  corporations  in  building  and 
maintaining  these  man-traps." 

The  same  question  was  before  the  supreme  court  of  Indiana, 
where  a  brakeman  was  swept  from  the  top  of  a  freight  train 
by  a  low  bridge,  and  severely  injured.  He  had  no  knowledge 
that  the  l)ridge  was  low,  or  that  it  would  interfere  with  the 
performance  of  his  duty  on  top  of  the  train  while  passing 
through.  It  was  there  urged  that  the  defect,  if  any,  was 
open  and  obvious,  the  dangerous  character  of  which  he  had 
opportunity  to  ascertain,  and  the  risk  of  which  he  assumed. 
The  court  ruled  that  it  was  the  duty  of  the  railroad  company 


July,  1887.]     St.  Louis  etc.  R.  R.  Co.  v.  Irwin.  269 

to  construct  and  maintain  its  roadway  and  overhead  struc- 
tures Va  such  a  condition  that  an  employee  can  perform  all 
the  duties  required  of  him  with  reasonable  safety;  and  as  the 
bridge  was  insufficient  in  height,  of  which  fact  the  employee 
had  no  knowledge,  the  injury  was  the  result  of  the  company's 
negligence,  and  for  which  the  employee  was  entitled  to  recover. 
The  court  referred  to  the  cases  relied  on  by  the  railroad  com- 
pany in  the  present  case,  but  refused  to  follow  them :  B.  0.  & 
C.  R.  R.  Co.  V.  Rowan,  104  Ind.  88;  23  Am.  &  Eng.  R.  R. 
Cases,  390;  3  N.  E.  Rep.  627. 

Chicago  &  N.  W.  R.  R.  Co.  v.  Swett,  45  111.  197,  92  Am. 
Dec.  206,  was  an  action  to  recover  damages  for  causing  the 
death  of  a  fireman.  The  train  on  which  he  was  working  was 
precipitated  through  a  bridge  which  was  defectively  con- 
structed and  maintained,  and  he  was  immediately  killed. 
The  court,  in  speaking  of  the  duty  of  the  company,  and  the 
peril  which  the  employee  assumed  when  he  entered  its  service, 
said:  — 

"The  peril  consisted  in  the  defective  construction  of  the 
road  and  its  appurtenances,  its  culverts  and  bridges,  which 
the  fireman  could  know  nothing  about,  and  which  he  could 
not  have  discovered  by  the  exercise  of  ordinary  precaution 
and  prudence;  indeed,  he  was  not  required  to  know  anything 
about  that;  the  implied  undertaking  of  his  employers,  that 
the  road  and  culverts  and  bridges  were  properly  constructed 
and  safe  for  the  passage  of  trains,  was  sufl&cient  for  him.  He 
embarked  in  the  service  on  the  faith  that  it  was  a  properly 
constructed  road,  and  that  his  superiors  were  in  the  exercise 

of  all  the  diligence  necessary  to  keep  it  in  good  repair 

There  is  no  rule  better  settled  than  this,  that  it  is  the  duty  of 
railroad  companies  to  keep  their  road  and  works,  and  all  por- 
tions of  the  track,  in  such  repair,  and  so  watched  and  tended 
as  to  insure  the  safety  of  all  who  may  lawfully  be  upon  them, 
whether  passengers,  or  servants,  or  others.  They  are  bound 
to  furnish  a  safe  road,  and  sufficient  and  safe  machinery  and 
cars.  For  their  failure  in  this,  and  their  employees  not  know- 
ing the  defects,  and  not  contracting  with  express  reference  to 
them,  the  companies  must  be  held  liable  for  such  injuries  aa 
their  employees  may  suffer  thereby." 

The  eame  doctrine  was  announced  in  Illinois  Cent.  R.  R.  Co. 
V.  Welch,  52  111.  183,  4  Am.  Rep.  593,  where  the  plaintiff  wa» 
injured  while  in  the  discharge  of  his  duties  as  brakeman  of  a 
freight  train,  by  an  awning  projecting  from  a  station-house  to 


270  St.  Louis  etc.  R.  R.  Co.  v.  Irwin.         [Kansas, 

a  dangerous  position,  and  which  knocked  him  from  the  top  of 
a  car  while  engaged  in  the  discharge  of  his  duty.  It  was  held 
that  this  was  such  negligence  as  made  the  company  liable  for 
the  damages  sustained.  Chicago  &  I.  R.  R.  Co.  v.  Russell^  91 
Id.  298,  33  Am.  Rep.  54,  was  a  case  where  a  railroad  company 
permitted  a  telegraph  pole  to  stand  for  a  period  of  three  years 
60  near  to  a  side-track  that  it  was  within  eighteen  inches  of 
passing  freight  trains,  so  that  a  brakeman  in  descending  from 
the  top  of  a  freight-car  while  in  motion,  in  the  performance  of 
his  duty,  came  in  collision  with  the  pole,  and  was  thrown  from 
the  car  and  killed.  It  was  held  to  be  culpable  negligence  in 
the  railroad  company  to  permit,  for  so  long  a  time,  such  an 
obstruction  to  be  in  such  close  proximity  to  its  track.  Chicago 
&  A.  R.  R.  Co.  V.  Johnson,  4  N.  E.  Rep.  381,  was  an  action  to 
recover  for  a  personal  injury  suffered  by  a  brakeman  on  a 
freight  train  while  passing  through  a  covered  bridge.  In 
affirming  a  judgment  in  favor  of  the  brakeman,  the  court  ap- 
proved of  an  instruction  to  the  effect  that  where  a  railroad 
company  constructs  a  bridge  along  the  line  of  its  road,  it 
should  build  it  of  sufficient  height  so  that  persons  employed 
by  the  railroad  company  as  brakemen,  and  who  are  required 
to  go  upon  the  top  of  freight-cars  in  discharging  their  duty  as 
brakemen  while  going  through  a  bridge,  may  pass  through 
and  under  the  bridge  without  danger  to  their  personal  safety; 
and  that  the  law  does  not  require  of  a  brakeman  that  he 
should  absolutely  know  all  the  defects  of  construction,  and  all 
the  obstructions  there  may  be  along  the  line  of  the  road.  In 
Clark  V.  St.  Paul  &  S.  C.  R.  R.  Co.,  28  Minn.  128,  a  brakeman 
was  killed  by  striking  an  awning  which  projected  over  a  side- 
track, in  such  a  position  that  its  lowest  projection  would  strike 
a  man  of  ordinary  height  on  the  head,  while  it  would  not  come 
in  contact  with  a  man  standing  eight  inches  or  a  foot  aside 
from  the  center  of  the  car.  The  brakeman  was  struck  by  the 
corner  of  the  awning  while  engaged  in  the  performance  of  his 
duty  in  moving  freight-cars  upon  the  side-track.  The  court 
held  that,  the  railroad  company  failed  in  its  duty  to  the  brake- 
man,  and  that  if  the  brakeman  had  no  knowledge  of  the  peril, 
the  company  would  be  responsible  for  the  injury:  See  also 
Greenleaf  v.  D.  &  S.  C.  R.  R.  Co.,  33  Iowa,  52;  Allen  v.  B.  C. 
R.  &  N.  R.  Co.,  57  Id.  623;  Dorsey  v.  Phillips  and  Colby  Con- 
truction  Co.,  42  Wis.  583;  Walsh  v.  Oregon  Ry  &  N.  Co.,  10 
Or.  250;  H.  &  T.  R'y  Co.  v.  Oram,  49  Tex.  342.  The  doctrines 
of  these  authorities  more  clearly  accord  with  our  views  than 


July,  1887.]     St.  Louis  etc.  R.  R.  Co.  v.  Irwin.  271 

do  some  of  those  cited  by  the  plaintiflf  in  error.  Most  of  the 
latter,  however,  were  disposed  of  on  the  theor}''  that  the  em- 
ployee had  actual  knowledge  of  the  peril  which  he  encoun- 
tered. In  this  case  the  jury  have  said,  and  not  without 
testimony,  that  Irwin  had  no  knowledge  nor  opportunity  to 
know  of  the  dangerous  character  of  the  bridge.  It  is  true  that 
he  had  run  over  the  road  and  through  the  bridge  daily  for 
three  months  preceding  the  accident.  He  knew  of  the  exist- 
ence of  the  bridge,  and  that  it  was  constructed  with  overhead 
timbers,  but  it  does  not  necessarily  follow  that  he  was  ac- 
quainted with  the  proximity  of  the  braces  to  the  top  of  the 
caboose  or  cars.  When  he  entered  the  service  of  the  company, 
he  assumed  the  ordinary  risks  incident  to  the  service;  and  if 
he  enters  or  continues  in  the  service  with  a  knowledge  of  the 
risk  or  danger,  and  without  objection,  he  must  abide  the  con- 
sequences: Jackson  v.  K.  C.  L.  &  S.  K.  R.  R.  Co.,  31  Kan.  761; 
K.  P.  R'y  Co.  V.  Peavey,  34  Id.  472;  Rush  v.  Missouri  Pacific  R'y 
Co.,  36  Id.  129. 

The  law,  however,  does  not  require  that  an  employee  shall 
know  of  all  defects  or  obstructions  that  may  exist  on  the  road, 
or  in  the  service  in  which  he  is  engaged;  and  it  cannot  be 
said  that  the  peril  in  this  case  was  so  obvious  and  patent  that 
Irwin  must  have  known  it.  He  had  a  right  to  assume  that 
the  company  had  done  its  duty,  and  placed  its  track  in  such 
a  condition  that  he  could  perform  his  duties  with  reasonable 
safety.  The  fact  that  a  portion  of  the  bridge  was  suflSciently 
high  to  clear  a  man's  head  while  standing  on  top  of  a  car, 
and  other  parts  were  not,  made  the  bridge  all  the  more  de- 
ceptive and  dangerous.  Irwin,  being  a  conductor,  was  not 
called  to  the  top  of  the  train  so  frequently  as  brakemen  were, 
and  hence  would  be  less  likely  to  notice  the  lowness  of  the 
timbers  in  the  bridge.  He  testified  that  he  supposed  the 
bridge  was  sufiBciently  high  so  that  it  would  be  safe  to  stand 
on  any  part  of  the  car.  Several  brakemen  and  others  who 
passed  through  the  bridge  stated  that  they  could  not  say  from 
looking  at  the  bridge  that  the  braces  were  so  low  as  to  strike 
or  injure  one  who  was  on  top  of  a  train.  Men  of  experience 
say  that  it  is  a  very  diflficult  matter  to  tell  exactly  how  high 
an  object  is  above  a  moving  train.  The  smoke  of  the  engine 
and  the  side  or  swaying  motion  of  the  cars  render  it  hard  to 
see  and  comprehend  the  proximity  of  the  overhead  timbers 
of  a  bridge;  and  this  is  very  well  shown  by  the  widely  diflFer- 
ing  statements  of  the  witnesses  respecting  the  height  of  the 


272  St.  Louis  etc.  R.  R.  Co.  v.  Irwin.         [Kansas^ 

braces  in  question.  It  does  not  appear  that  Irwin  had  been  on 
top  of  the  cars  while  passing  through  the  bridge  more  than  once 
before  the  time  of  the  accident;  and  he  says  that  he  knows  of 
no  other  bridge  on  the  road  with  braces  so  low  as  they  are  in 
this  one.  The  plaintifiF  had  unloaded  freight  from  his  train  at 
the  station  at  El  Dorado,  and  in  accordance  with  the  directions 
of  the  train-master  had  backed  down  half  a  mile  in  order  to 
make  a  run  over  a  high  grade,  and  over  the  crossing  of  the 
Atchison,  Topeka,  and  Santa  Fe  railroad,  which  was  a  few 
yards  beyond  the  station.  A  train  on  that  road  was  approach- 
ing the  crossing,  and  Irwin  sent  one  of  his  brakemen  to  flag 
the  crossing,  while  he  ran  back  over  the  cars  of  his  train  to 
the  caboose.  He  remained  on  top  of  the  caboose  to  watch  the 
Santa  Fe  train  in  order  to  give  the  necessary  signal  and  avoid 
a  collision.  It  seems  that  on  the  previous  day  his  train  had 
almost  collided  with  the  Santa  Fe  train  at  the  same  crossing. 
It  is  said  that  Irwin  might  have  required  a  brakeman  to  per- 
form the  duty  on  top  of  the  caboose  instead  of  going  there 
himself;  but  it  appears  that  his  action  in  that  respect  was  not 
outside  of  the  scope  of  his  duties.  Under  all  the  testimony, 
we  cannot  say  that  the  danger  was  so  open  and  obvious  that 
Irwin  knew,  or  should  have  known,  of  it;  nor  can  we  say  that 
he  was  guilty  of  contributory  negligence.  Whether  he  acted 
with  ordinary  care  is  a  mixed  question  of  law  and  fact  which 
was  proper  for  the  determination  of  the  jury,  taking  into  con- 
sideration all  the  facts  and  circumstances.  The  jury  has 
passed  upon  the  question  on  competent  testimony,  and  we  are 
unable  to  say  that  its  finding  is  unwarranted:  Huddleston  v. 
Lowell,  106  Mass.  282;  Conroy  v.  Vulcan  Iron  Works,  62  Mo. 
35;  Dale  v.  St.  Louis  etc.  Ry  Co.,  63  Id.  455;  Wood  on  Master 
and  Servant,  sees.  376,  385;  and  cases  heretofore  cited. 

Complaint  is  made  of  the  ruling  of  the  court  in  refusing 
several  instructions  requested  by  the  plaintifif  in  error.  The 
third  was  a  declaration  that  the  company  would  not  be  liable 
if  Irwin  could  have  protected  himself  by  the  use  of  ordinary 
care.  The  court  stated  this  rule  favorably  enough  for  the 
company,  where  it  instructed  that,  *'  If  the  bridge  in  question 
was  of  suflBcient  height  and  width  to  enable  employees,  while 
in  the  discharge  of  their  duties  on  top  of  freight  and  caboose 
cars  in  use  at  the  time  on  defendant's  road,  to  pass  through  it 
with  safety,  by  the  use  of  ordinary  care  to  protect  themselves 
from  injury,  then  defendant  would  not  be  liable  for  plaintifl''8 
injury.     The  law  does  not  require  the  defendant  to  furnish  a 


July,  1887.]     St.  Louis  etc.  R.  R.  Co.  v.  Irwin.  273r. 

bridge  which  the  plaintiff  could  not  be  injured  on,  but  i» 
only  required  to  furnish  such  a  bridge  as  the  plaitniff  could 
pass  through  in  safety,  in  the  performance  of  his  duties  to- 
the  company,  while  exercising  ordinary  care  for  his  personal 
safety." 

The  ninth  request  related  to  the  knowledge  of  Irwin,  hold-^- 
ing  that  if  he  had  knowledge  of  the  bridge,  or  reasonable  op- 
portunity to  know  of  its  proximity  to  the  top  of  the  cars,  he 
could  not  recover.  The  instruction  as  drawn  was  not  exactly 
in  harmony  with  the  view  we  have  taken,  but  the  company 
has  no  cause  to  complain  with  respect  to  this  rule,  as  the 
twentieth  and  twenty-second  instructions  given  by  the  court 
stated  that  if  he  knew  or  had  opportunity  to  inform  himself 
of  the  condition  of  the  bridge  and  the  position  of  the  braces^ . 
and  their  proximity  to  the  top  of  the  caboose,  he  could  not' 
recover;  and  further,  that  if  he  had  a  fair  opportunity  for  ac- 
quiring a  knowledge  of  the  condition  of  the  bridge  and  its 
danger  while  passing  thereunder,  if  there  was  any,  but  ignored, 
such  knowledge  or  opportunity,  and  neglected  to  avail  himself 
thereof,  he  cannot  derive  any  advantage  from  such  ignorance 
or  want  of  knowledge,  but  his  rights  are  to  be  determined  the 
same  as  if  he  possessed  the  knowledge  he  might  have  acquired 
by  the  reasonable  exercise  of  his  faculties.  The  tenth  request 
related  to  the  duty  of  the  company  in  the  construction  of  the 
bridge,  which  duty  was  stated  more  fully  and  correctly  iu 
several  instructions  that  were  given.  Objections  are  made 
to  the  twentieth  and  twenty-third  instructions  that  were  given. 
They  relate  to  the  rule  fixing  the  liability  of  the  company,, 
where  an  employee  has  knowledge  of  the  danger  which  he  en- 
counters. We  do  not  think  the  criticisms  of  counsel  are  justi- 
fied. But  as  the  jury  has  expressly  found  that  Irwin  had  no 
knowledge  of  the  defect  in  the  bridge,  these  instructions  be- 
come unimportant. 

We  have  examined  the  objections  to  the  admission  of  evi- 
dence, and  it  is  suflBcient  to  say  that  we  do  not  regard  the 
rulings  to  have  been  prejudicial  to  the  rights  of  the  plaintiff 
in  error. 

One  of  the  grounds  for  a  new  trial  was  the  misconduct  of 
counsel  in  his  closing  argument.  The  aflfidavits  which  were 
filed  in  the  case  show  that  the  remarks  of  counsel  were  out- 
side of  the  evidence,  and  were  clearly  improper.  However,, 
no  objection  to  the  remarks  was  made,  except  to  the  state- 
ment that  Irwin  would  wait  in  misery  and  pain  for  the  com- 

AM.  St.  Rip.,  Vol.  I.  — 10 


274  St.  Louis  etc.  R.  R.  Co.  v.  Irwin.         [Kansas, 

ing-in  of  the  jury,  and  that  he  hoped  they  would  give  more 
than  the  jury  did  before,  to  pay  for  the  long  trouble  and  the 
long  work.  The  objection  to  this  statement  was  promptly 
sustained  by  the  court,  and  the  attention  of  the  court  below 
was  not  called  to  any  other  of  the  objectionable  statements. 
Of  course  the  arguments  should  be  confined  to  the  facts 
brought  out  in  the  evidence,  and  it  is  error  to  allow  counsel, 
over  objections  and  exceptions,  to  discuss  matters  foreign  to 
the  evidence  and  prejudicial  to  the  opposing  party.  But  in 
exercising  its  appellate  jurisdiction,  this  court  is  limited  to 
the  review  of  the  alleged  errors  committed  by  the  district 
court;  and  generally  speaking,  the  attention  of  the  trial  court 
should  be  called  to  the  improper  language  of  counsel,  and  a 
ruling  had  upon  the  objection,  in  order  to  present  the  ques- 
tion here.  There  being  no  exception  to  the  ruling  on  an  ob- 
jection, nor  any  unsustained  objection,  we  cannot  say  the 
court  erred:  State  v.  McCool,  34  Kan.  613,  617. 

Some  other  objections  were  made,  all  of  which  have  been 
examined,  but  we  find  nothing  in  the  case  that  will  justify  a 
reversal,  and  hence  the  judgment  of  the  district  court  will  be 
affirmed. 


Railroad  CJompany  must  Protect  Employees  from  Danger,  by  use  of  all 
reasonable  safeguards:  Towns  v.  Vicksburg  etc.  R.  R.  Co.,  55  Am.  Rep.  508. 
Reasonable  care  required  of  master  to  avoid  the  exposure  of  servants  to 
extraordinary  risks:  Wonder  v.  Baltimore  etc.  R.  R.  Co.,  3  Id.  143,  and 
note.  Ordinary  care  must  be  used  by  company  in  providing  suitable 
structures,  engines,  and  apparatus,  and  in  furnishing  safe  and  sufficient  road- 
way:  O'Donnell  v.  Alleghany  Valley  R.  R.  Co.,  98  Am.  Dec.  336.  For  lia- 
bility of  railroad  company  to  employees  for  injury  sustained  by  low  bridge, 
or  other  obstructions  over  or  near  the  track,  see  Broasman  v.  L.  V.  R.  R.  Co., 
67  Id.  479,  and  cases  there  cited;  Hooper  v.  ColunMa  and  OreenmUe  R.  R. 
Co.,  53  Id.  691,  and  note;  Van  Ambughv.  Vicksburgh  R.  R.,  55  Am.  Rep. 
517;  Clark  v.  Richmond  R.  R.,  49  Id.  394.  When  contributory  negligence 
bars  recovery:  Northern  Central  Railway  Co.  v.  State,  Use  of  Price,  96  Am.  Dec. 
545;  see  Wichita  d-  W.  R.  R.  Co.  v.  Davis,  post,  p.  275.  Negligence  on  part  of  in- 
jured party,  what  constitutes  to  bar  recovery,  and  what  questions  considered 
by  jury  in  determining  whether  such  negligence  existed:  Northern  Central 
R.  R.  Co.  v.  StaU,  Use  of  Price,  96  Id.  545;  SpeiKer  v.  B.  <&  0.  R.  R.  Co.,  M 
Am.  Rep.  269,  and  note.  Servant  assumes  ordinary  risks  of  hia  employ- 
nwnt:  O'Donnell  v.  Alleghany  Valley  R,  R.  Co.,  98  Am.  Deo.  336. 


July,  1887.]     Wichita  etc.  R.  R.  Co.  v.  Davis.  275 

"Wichita    and   Western    R.    E,    Co.   v.    Davis. 

[37  Kansas,  743.] 

Cbossing  Railroad.  —  To  entitle  one  to  recover  for  injuries  sustained 
while  going  over  a  railroad  crossing  he  must,  before  attempting  to  cross, 
use  reasonable  and  ordinary  care  to  determine  whether  a  train  is  ap- 
proaching, and  if  he  neglects  so  to  do,  he  crosses  at  his  peril. 

Negligence.  — Where  the  undisputed  facts  show  that  no  precaution  has 
been  taken  to  ascertain  and  avoid  dangers  by  one  injured  at  a  railroad 
crossing,  it  then  becomes  a  question  of  law  for  the  courts. 

Where  there  is  Conflict  of  Testimont  as  to  Degree  of  care  used  by 
one  who  is  injured  in  crossing  a  railroad,  it  is  then  a  question  for  the 
jury. 

Slight  Contributory  Negligence  not  clearly  shown  to  have  contributed 
to  plaintiff's  injury  will  not  defeat  his  recovery  when  the  employees  of 
the  defendant  were  grossly  negligent. 

The  defendant  in  error,  plaintiff  below,  brought  this  action 
against  the  plaintiff  in  error  to  recover  compensation  for  in- 
juries sustained  in  crossing  defendant's  track.  The  plaintiff 
was  a  farmer,  about  sixty  years  of  age.  When  returning  home 
from  Wichita,  he  passed  out  on  Oak  Street,  which  crosses  the 
railroad  track  of  defendant.  On  the  south  side  of  Oak  Street, 
eixty-four  feet  west  of  the  track,  is  a  peach  orchard,  which  for 
a  distance  obstructs  the  view  of  the  track.  South  of  this  for 
several  blocks  were  dwellings  and  elevators.  There  were  two 
switches  parallel  with  the  main  track,  and  on  these  at  inter- 
vals, extending  for  some  distance,  were  a  number  of  loaded 
cars,  two  of  which  were  partly  on  the  crossing.  The  accident 
occurred  between  three  and  four  o'clock  in  the  afternoon,  at 
which  time  the  wind  was  blowing  hard,  and  it  was  cloudy  and 
very  dusty.  Plaintiff  was  driving  a  team  hitched  to  a  two- 
horse  wagon,  and  on  approaching  the  crossing,  he  looked  both 
north  and  south.  He  saw  cars  on  the  side-track,  but  no  engine 
or  train.  He  drove  on,  and  when  the  horses  were  partly  over 
the  main  track,  discoveped  a  train  backing  towards  him.  The 
car  nearest  to  him  was  a  coal  car,  loaded  with  telegraph  poles, 
some  of  which  extended  beyond  the  end  of  the  car.  Plaintiff 
was  knocked  out  of  the  wagon  by  the  car,  and  sustained* 
injuries  to  his  back  and  hips.  The  engine  was  in  charge 
of  the  fireman,  the  engineer  being  absent.  There  was  no 
otie  on  the  outside  of  the  cars  watching  its  movements. 
The  trainman  first  saw  plaintiff  when  he  was  driving  on  the 
track,  and  then  the  engine  was  reversed  and  the  train  stopped. 
Trial  by  jury  at  the  February  term,  1886.  The  plaintiff  re- 
covered judgment  for  six  thousand  dollars  and  costs.  The 
defendant  appeals. 


276  Wichita  etc.  R.  R.  Co.  v.  Davis.  [Kansas, 

George  R.  Peck,  A.  A.  Hurd,  aiid  Robert  Dunlap,  for  the  plain- 
tiflP  in  error. 

Campbell  and  Dyer,  for  the  defendant  in  error. 

By  Court,  Clogston,  C.  Upon  this  record,  the  plaintiff  in 
error  raised  but  two  questions,  but  as  they  are  substantially 
one  in  fact,  we  shall  discuss  them  as  one,  and  that  is,  Did  the 
injury  occur  by  the  contributory  negligence  of  the  defendant? 
The  plaintiff  in  error  now  contends  that  on  the  facts  found  by 
the  jury  it  was  error  not  to  direct  the  jury  to  return  a  verdict 
for  the  defendant,  plaintiff  in  error.  Upon  this  theory,  it  re- 
quested the  court  to  instruct  the  jury  as  follows:  "  I  instruct 
you  that  if  the  plaintiff,  before  driving  upon  the  track  of  the 
defendant  at  which  the  injury  complained  of  occurred,  could 
at  any  time  have  seen  the  approaching  train  in  time  to  escape 
by  looking  to  the  south,  it  will  be  presumed,  as  a  matter  of 
law,  either  that  he  did  not  look,  or  that  if  he  did  look,  that  he 
did  not  heed  what  he  saw,  and  concluded  to  take  the  risks  of 
attempting  to  cross  in  front  of  the  approaching  train;  in  which 
case,  I  instruct  you  that  the  plaintiff,  if  you  so  find  the  facts, 
was  guilty  of  contributory  negligence,  contributing  to  his  injury, 
and  cannot  recover  in  this  case." 

This  instruction  the  court  refused  to  give.  The  rule,  as 
contended  for  by  the  plaintiff  in  error,  is,  that  if  the  plain- 
tiff could  have  seen,  by  carefully  looking,  the  approach  of  the 
train,  then  it  was  negligence  for  him  to  drive  over  the  track 
ahead  of  the  train,  knowing  that  the  train  was  coming;  or,  if 
he  failed  to  look,  or  if  looking,  failed  to  discover  the  train  and 
drove  upon  the  track  and  was  injured,  he  cannot  recover;  or 
in  other  words,  that  if  one  does  look  and  fails  to  discover 
what  it  would  be  possible  for  others  to  see,  or  under  some  cir- 
cumstances might  have  been  seen  by  the  person  so  looking, 
then  it  is  contributory  negligence  not  to  see.  If  this  rule  is 
the  true  one,  then  nothing  short  of  the  greatest  care  and  cau- 
-tion  will  warrant  a  recovery  for  injuries  received  through  neg- 
ligence in  the  operation  of  trains.  We  do  not  understand  the 
rule  to  be  so  far  extended  as  to  require  the  greatest  care  and 
caution,  but  only  reasonable  care,  such  as  a  man  of  ordinary 
prudence  would  exercise  under  similar  circumstances:  Des- 
mond V.  Brown,  29  Iowa,  54;  4  Am.  Rep.  194;  L.  L.  &  G.  R.  R. 
Co.  V.  Rice,  10  Kan.  426.  The  rule  seems  to  be  well  settled 
in  this  state,  that  before  a  person  can  recover  for  injuries  re- 
ceived in  crossing  a  railroad  at  a  public  road  or  street,  he 


July,  1887.]     Wichita  etc.  R.  R.  Co.  v.  Davis.  277 

must,  before  attempting  to  cross,  recognize  the  danger  and 
make  use  of  the  senses  of  hearing  and  seeing  in  determining 
whether  a  train  is  in  dangerous  proximity;  and  if  he  neglect 
this  duty,  and  venture  blindly  upon  the  track  without  making 
an  effort  to  ascertain  whether  a  train  is  approaching,  that  he 
does  so  at  his  peril:  Clark  v.  Missouri  Pac.  R'y  Co.,  35  Id. 
354.  The  supreme  court  of  Iowa,  in  speaking  of  this  ques- 
tion, said:  "The  instruction  was  properly  refused.  It  requiretfv 
too  great  a  degree  of  care  and  circumspection.  It  makes  no  ^ 
allowance  for  the  ordinary  imperfections  of  humanity.  It  re- 
quires absolute  perfection  of  attention  to  surroundings,  while 
the  mind  is  concentrated  upon  a  particular  duty.  So  high 
a  degree  of  caution  the  law  does  not  enjoin.  It  requires  only 
the  exercise  of  reasonable  and  ordinary  care":  Greenleaf  v. 
Dubuque  &  S.  C.  R.  R.  Co.,  33  Iowa,  57. 

The  supreme  court  of  the  United  States,  referring  to  an  in- 
struction similar  to  that  contended  for  by  the  defendant,  said: 
'*  It  states  such  duty  with  the  rigidity  of  a  statute,  making  no 
allowances  for  modifying  circumstances,  or  for  accidental  di- 
version of  the  attention  to  which  the  most  prudent  and  careful 
are  sometimes  subject,  and  assuming  in  effect  that  the  duty 
of  avoiding  a  collision  lies  wholly,  or  nearly  so,  on  one  side": 
Continental  Improvement  Co.  v.  Stead,  95  U.  S.  168.  See  U.  P. 
R'y  Co.  V.  Adams,  33  Kan.  427. 

But  where  the  undisputed  facts  show  that  this  rule  has  been 
disregarded,  and  no  precaution  has  been  taken  to  ascertain 
and  avoid  dangers,  it  then  becomes  a  question  of  law  for  the 
court,  and  not  a  question  of  fact  to  be  submitted  to  the  jury. 
Where  there  is  a  conflict  of  testimony  that  reasonable  men 
might  differ  about,  then  it  becomes  a  question  of  fact  to  be 
submitted  to  the  jury.  The  plaintiff  testified  that  he  looked 
north  and  south,  expecting  to  see  a  train;  that  a  gale  of  wind 
was  blowing,  and  it  was  very  dusty;  that  he  saw  the  cars  on 
the  side-track,  and  looked  to  see  whether  an  engine  was  behind 
them,  and  saw  none;  and  the  fact  that  the  train  was  moving 
backward, — are  questions  to  go  to  the  jury  with  the  fact  that 
the  train  was  in  view  for  some  two  blocks  south  of  the  crossing, 
and  might  have  been  seen.  It  was  perhaps  seen  by  the  plain- 
tiff, and  mistaken,  under  the  above  conditions  of  the  weather 
and  the  character  of  the  train,  and  he  thought  it  to  be  on  the 
side-track.  It  was  said  in  Barnard  v.  Rensselaer  &  S.  R.  R.  Co., 
1  Abb.  App.  131:  "If  there  is  any  conflict  in  the  evidence  going 
to  establish  any  of  the  circumstances  upon  which  the  question 


278  Wichita  etc.  R.  R.  Co.  v.  Davis.         [Kansas, 

depends,  it  must  be  left  to  the  jury.  If  there  are  inferences 
to  be  drawn  from  the  proof  which  are  not  certain  and  incon- 
trovertible, they  are  for  the  jury.  If  it  is  necessary  to  deter- 
mine, as  in  most  cases  it  is,  what  a  man  of  ordinary  prudence 
and  care  would  be  likely  to  do  under  the  circumstances  proved, 
this,  involving  as  it  generally  must  more  or  less  conjecture, 
can  only  be  settled  by  a  jury." 

In  Webber  Y.  N.  Y.  Cent.  etc.  R.  R.  Co.,  58  N.  Y.  465,  the  court 
said:  "  It  is  true  that  the  vigilance  and  caution  of  the  traveler 
must  be  proportioned  to  the  known  danger  of  the  injury;  but 
it  is  also  in  a  measure  limited  by  the  usual  and  ordinary 
signals  and  evidences  of  danger.  The  natural  instinct  of  self- 
preservation  ordinarily  will  lead  to  the  employment  of  all 
the  precaution  which  the  situation  suggests  to  an  individual; 
and  whether  they  are  such  as  would  occur  to  or  be  adopted 
by  men  of  ordinary  care  and  prudence  must  necessarily,  in 
most  cases,  be  left  to  the  jury.  The  intelligence  and  judg- 
ment, as  well  as  the  experience,  of  twelve  men,  must  settle  a 
question  of  that  character  as  one  of  fact,  and  not  of  law": 
K.  P.  R'y  Co.  V.  Richardson,  25  Kan.  391;  U.  P.  R'y  Co.  v. 
Young,  19  Id.  488;  K.  P.  Ry  Co.  v.  Pointer,  14  Id.  37;  Pa.  R.  R. 
Co.  V.  Weber,  76  Pa.  St.  157;  18  Am.  Rep.  407;  Carr  v.  N.  Y. 
Cent.  etc.  R.  R.  Co.,  60  N.  Y.  633;  Thurber  v.  Harlem  etc.  R.  R. 
Co.,  60  Id.  331;  LoucJcs  v.  Chicago  etc.  R.  R.  Co.,  18  N.  W.  Rep. 
651. 

While  this  question  is  a  close  one,  yet  we  do  not  feel  called 
upon  to  disturb  the  judgment  where  it  is  so  conclusively  shown 
that  the  employees  of  the  defendant  in  charge  of  the  train  were 
so  grossly  negligent  in  its  management.  Although  the  plain- 
tiff may  have  been  somewhat  negligent,  yet  it  is  not  clearly 
shown  that  his  negligence  contributed  to  the  injury.  If  he 
saw  the  train  after  passing  the  orchard,  and  the  train  was  then 
some  distance  south,  he  might  with  reasonable  safety  have 
crossed  before  it  reached  the  crossing,  provided  the  train  was 
running  only  at  such  a  rate  of  speed  as  it  might  properly  run 
in  a  populous  city.  This  court  has  repeatedly  held  that  where 
the  negligence  of  one  party  is  great,  and  that  of  the  other  but 
slight,  notwithstanding  the  slight  negligence  the  party  may 
recover:  Pacific  R'y  Co.  v.  Houts,  12  Kan.  328;  K.  P.  R'y  Co. 
V.  Pointer,  14  Id,  37;  Sawyer  v.  Sauer,  10  Id.  466. 

Under  all  the  circumstances  of  this  case,  we  do  not  find 
that  the  plaintiff  was  guilty  of  such  contributory  negligence 
as  to  prevent  his  recovery.  It  is  therefore  recommended  that 
the  judgment  of  the  court  below  be  affirmed. 


July,  1887.]     Wichita  etc.  R.  R.  Co.  v.  Davis.  279 

Must  Use  Eyes  and  Ears.  —  Before  attempting  to  cross  railroad  track, 
one  is  bound  to  use  his  eyes  and  ears  to  determine  whether  a  train  is  ap- 
proaching, and  if  he  neglects  to  do  so  he  will  be  guilty  of  negligence:  Oon- 
tales  V.  New  York  etc.  R.  R.  Co.,  98  Am.  Dec.  58,  and  note. 

Contributory  Negligence.  — Person  seeking  to  recover  for  injuries  re- 
sulting from  negligence  of  railroad  company  must  be  free  from  negligence 
contributing  to  such  injuries:  Oonzales  v.  New  York  etc*  R.  R.  Co.,  98  Am. 
Dec.  58,  and  note;  Oaynor  v.  Old  Colony  etc.  R'yCo.,  97  Id.  96;  NewOrleanaetc. 
R.  R.  Co.  V.  Statham,  97  Id.  478;  Louisville  etc.  R.  R.  Co.  v.  Siddnga,  96  Id. 
320;  BaUimore  etc.  R.  R.  Co.  v.  State,  96  Id.  528. 

Contributory  Negligence  Bar  to  Recovery:  Potter  v.  Chicago  etc.  R'y 
Co.,  94  Am.  Dec.  548;  State  v.  Maine  etc.  R.  R.  Co.,  49  Am.  Rep.  622;  Mar- 
tin V.  Western  Union  R.  R.  Co.,  99  Am.  Dec.  189;  Frazer  v.  South  etc.  R.  R. 
Co.,  60  Am.  Rep.  145;  Bardwell  v.  Mobile  etc.  R.  R.  Co.,  56  Id,  842;  Darwin 
V.  CJtarlotte  etc.  R.  R.  Co.,  55  Id.  32. 

Neqligencb  Usually  Question  of  Fact:  Oonzalea  v.  New  York  etc.  R.  R. 
Co.,  98  Am.  Dec.  58,  and  note;  Pennsylvania  R.  R.  Co.  v.  BameU,  98  Id.  346; 
Detroit  etc.  R.  R.  Co.  v.  Curtis,  99  Id.  141. 

Slight  Negligence  as  Bar  to  Recovery:  Dreher  v.  Toum  of  Fitchburg, 
99  Am.  Dec.  91;  slight  negligence,  ordinary  care,  and  ordinary  negligence 
defined:    Id.,  and  note. 

Contributory  Negligence,  when  does  not  Bab  RECovERy:  Louisville 
etc.  R.  R.  Co.  V.  Sickings,  96  Am.  Dec.  326,  note. 

What  Constitutes  Negligence  on  Part  of  One  Injured  to  Bar  Re- 
covery: Baltimore  and  Ohio  R.  R.  Co.  v.  State  etc.,  96  Am.  Dec.  532,  and 
note;  Northern  Central  R.  R.  Co.  v.  State,  96  Id.  546. 

Fireman  Running  Engine  —  Negligence.  —  Permitting  fireman  to  run 
engine  is  a  fact  from  which  jury  may  find  negligence  on  the  part  of  the  com* 
pany:  O'Mara  v.  Hudson  River  R.  R.  Co.,  98  Am.  Dec.  61. 

Failure  to  Ring  Bell,  as  Required  by  Statute,  as  Question  of 
Negligence:  O'Mara  v.  Hudson  River  R.  R.  Co.,  98  Am.  Dec.  61;  St.  Louis 
etc  R.  R.  Co.  V.  Terhune,  99  Id.  604. 

Burden  of  Proof  —  Contributory  Negliosncb:  Indiana  etc  B.  R.  Co. 
r.  Oreene,  56  Am.  Rep.  736. 

Obligation  of  Railroad  Company  to  Give  Warning  of  Apfboaohino 
Trains:  Pennsylvania  R.  R.  Co.  v.  Bamett,  98  Am.  Dec.  346,  note. 

What  is  Due  Care  is  Question  for  Jury:  Oaynor  v.  Old  Colony  etc  R'y 
Co.,  97  Am.  Deo.  96,  and  note.  Care  to  be  used  by  one  crossing  railroad 
track:  Id. 

Reasonable  Care  as  to  Giving  Notice  of  AppnoACHiNa  Train  la  a 
question  of  fact:  Byrne  v.  New  York  Central  etc  R.  R.  Co.,  58  Am.  Rep.  512. 

Whether  Act  of  Plaintiff  under  Ciroumstances  was  NEOuaENOE: 
Lawrence  v.  Oreen,  69  Am.  Rep.  428;  OuUim  v.  Lowell,  69  Id.  102,  and 
note;  Harris  v.  Hannibal  etc  R.  R.  Co.,  69  Id.  Ill,  and  note. 

Defendant  not  Liable  where  Injury  to  Plaintiff  was  not  proximate 
result  of  defendant's  misconduct:  Jackson  v.  Nashville  etc.  R.  R.  Co.,  49  Am. 
Rep.  663. 

Liability  of  Railroad  Company  for  Negligent  Acts  of  its  Ser- 
vants: KUne  V.  Central  Pacific  R.  R.  Co.,  99  Am.  Dec.  282,  and  note. 

Liabilitt  of  Defendant  for  Injuries  Sustained  by  Plaintiff,  limited 
to  what  cases:  Kltne  v.  Central  Pacific  R.  R.  Co.,  99  Am.  Dec  282,  noU  289. 


:280  Wichita  etc.  R.  R.  Co.  v.  Davis.         [Kansas. 

NEOuaxNCS  OF  Carrier  of  Passenger,  who  is  injured  by  the  concur* 
teat  negligence  of  carrier  and  another,  is  not  contributory  negligence  of  such 
.passenger:  Holzab  v.  New  Orleana  etc.  R.  R.  Co.,  68  Am.  Rep.  177. 

Adicissibilitt  of  Convkrsation  of  Agent  of  Railroad  Cohfakt: 
Permsylvama  R.  R.  Co.  v.  Boolca,  98  Am.  Dec.  229. 

EviBSNOK  OF  Size  of  Plaintiff's  Fahilt,  his  habits  and  pecuniary  cir< 
cumstances,  when  admissible:  Pennsylvania  R.  R.  Co.  t.  Bocks,  98  Am,  Dec 
229,  and  note. 

Damages,  What  Inolxtded  as  Such,  and  amount,  how  determined:  Petm- 
tylvania  R.  R.  Co.  v.  Boohs,  98  Am.  Dec.  229,  and  note. 

When  Exehflabt  Damages  may  be  Found:  New  Orkana  etc,  B.  R,  Oo, 
w.  Statham,  97  Am.  Deo.  478,  note  493. 


CASES 


SUPREME  JUDICIAL  COURT 


MAINE. 


Oak  v.  Dustin. 

[79  Maine,  23.1 
Defense  or  Dubess  or  Principal  cannot  be  made  by  Borety  against  whom 
no  duress  was  employed. 

Scire  facias.  The  principal  was  not  a  party  to  the  action. 
The  surety  defended  on  the  ground  that  the  bond  was  obtained 
by  duress  of  the  principal. 

Crosby  and  Crosby,  for  the  plaintiff. 
Thomas  H.  B.  Pierce^  for  the  defendant. 

By  Court,  Walton,  J.  This  is  an  action  of  scire  facias  on  a 
bail  bond.  The  defense  is  duress.  Not  duress  of  the  surety, 
against  whom  the  action  is  brought,  but  duress  of  the  princi- 
pal in  the  bond,  who  is  not  sued.  It  is  claimed  that  he  was 
unlawfully  arrested  on  a  writ,  the  oath,  as  the  defendant  con- 
tends, not  being  suflBciently  formal  to  justify  his  arrest.  The 
defense  cannot  prevail.  The  person  on  whom  the  duress  was 
practiced  is  the  only  one  who  can  take  advantage  of  it  as  a 
ground  of  defense.  It  cannot  be  set  up  by  a  stranger,  nor  by 
a  surety,  on  whom  no  restraint  was  imposed:  Springfield  Card 
Mfg.  Co.  V.  West,  1  Cush.  388;  Robinson  v.  Gordd,  11  Id.  55. 

In  the  case  last  cited,  it  is  said  that  this  distinction  rests  on 
sound  principle;  that  he  only  should  be  allowed  to  avoid  his 
contract  upon  whom  the  unlawful  restraint  or  fear  has  oper- 
ated ;  that  the  contract  of  a  surety,  if  his  own  free  act,  and 

281 


282  Bunker  v.  Barron,  [Maine, 

executed  without  coercion  or  illegal  menace,  should  be  held 
binding;  that  the  duress  of  his  principal  cannot  afifect  his  free 
agency,  or  in  any  way  control  his  action;  that  it  may  excite 
his  feelings,  awaken  his  generosity,  and  induce  him  to  act 
from  motives  of  charity  and  benevolence  towards  his  neighbor; 
but  that  these  can  furnish  no  valid  ground  of  defense  against 
his  contract,  which  he  has  entered  into  freely  and  without 
coercion. 

The  defense  of  duress  not  being  open  to  the  defendant,  it  is 
not  important  to  inquire  whether  his  principal  was  or  was  not 
unlawfully  arrested.  But  it  may  not  be  improper  to  add  that 
the  authorities  cited  by  the  plaintiff's  counsel  seem  to  sustain 
the  form  of  the  oath  and  the  legality  of  the  arrest;  and  if 
BO,  then  there  was  no  duress  of  any  one.  But  upon  this  point 
we  express  no  opinion. 

Judgment  fc  plaintiff  for  $101.86,  with  interest  from  date 
of  the  writ. 


DuEEss  OF  Principal,  when  Defense  for  Surety:  Brandt  on  Surety- 
ship, sec.  5;  Baylies  on  Sureties  and  Guarantors,  217,  218. 


Bunker  v.  Barron. 

[79  Mains,  62.] 
MOKTGAQB,   CONVETANCB,   AND  DEFEASANCE  EXECIJTED  AT  SaMB  TiME,  and 

as  parts  of  the  same  transaction,  though  upon  different  pieces  of  paper, 
constitute  in  law  but  one  instrument,  and  that  instrument  is  a  mort- 
gage. 

Payment  is  Presumed  Prima  Facie  from  the  giving  of  a  negotiable  note 
for  a  simple  contract  debt.  This  presumption  may  be  rebutted  by  any 
competent  evidence  showing  that  the  intention  of  the  parties  was  not  to 
treat  such  note  as  a  payment. 

Payment  is  not  Presumed  from  taking  a  negotiable  note  for  an  antece- 
dent debt,  when  such  debt  is  secured  by  a  mortgage  or  other  security. 

Mortgage  is  Discharged  only  by  Payment  or  Release,  and  not  by  a 
change  in  or  renewal  of  the  note  or  debt  which  the  mortgage  was  given 
to  secure. 

Writ  of  entry.  The  defendants  claimed  that  a  deed  under 
which  plaintiff  deraigned  title,  though  absolute  on  its  face, 
was,  in  law,  a  mortgage,  and  that  such  mortgage  had  been 
released  and  become  inoperative  by  the  mortgagee  at  a  date 
Bubsequent  to  the  mortgage,  taking  a  negotiable  note  for  a 
Bum  in  which  the  original  mortgage  debt  was  included. 


Feb.  1887.]  Bunker  v.  Babron.  283 

J.  J.  PartiUf  for  the  plaintiflF. 

D.  D.  Stewart  and  A.  H.  Ware^  for  the  defendant. 

By  Court,  Foster,  J.  The  plaintiff  claims  the  premises  in 
question  under  a  mortgage  to  him  from  William  Quint^  dated 
September  12,  1874.  While  the  tenant  in  possession  does  not 
claim  to  own  the  premises,  or  any  part  thereof,  his  defense  is 
based  on  a  title,  earlier  in  point  of  time,  in  William  Barron,  his 
father,  whose  agent  or  servant  he  is,  in  the  occupation  and  pos- 
session of  the  premises.  That  title  originated  in  this  way:  On 
January  7, 1868,  William  and  Draxcy  Quint,  and  Mary  Quint, 
their  mother,  conveyed  by  warranty  deed  to  John  S.  Paine, 
who,  on  the  same  day,  and  as  part  of  the  same  transaction, 
gave  back  a  bond  to  these  parties,  therein  agreeing  to  recon- 
vey  the  premises,  being  the  farm  where  they  then  lived,  upon 
payment  to  him  by  them  of  the  sum  of  three  hundred  dollars, 
in  annual  payments  of  one  hundred  dollars  each,  in  three, 
four,  and  five  years  from  date;  and  also  all  other  debts  which 
the  said  Quints  should  thereafter  contract  with  the  said  Paine. 
No  notes  accompanied  these  transactions.  The  bond  was  not 
recorded  till  May  26,  1876.  November  7,  1874,  the  Quints 
obtained  $225  more  from  Paine;  and  William  and  Draxcy,  on 
that  day,  conveyed  to  him  by  warranty  deed  another  small 
parcel  of  land  adjoining  the  home  farm.  February  1,  1875, 
in  consideration  of  one  hundred  dollars  paid  by  Paine,  Lydia, 
the  wife  of  William  Quint,  released  her  right  of  dower  in  the 
home  farm.  At  the  same  time,  William  Quint  gave  Paine  his 
note  for  $872.34,  and  Paine  gave  him  back  a  bond,  therein 
agreeing  to  convey  to  him  the  farm  and  the  other  parcel 
named  upon  payment  by  said  Quint  of  the  said  note.  No 
part  of  this  note  has  ever  been  paid.  Paine  conveyed  the 
premises,  and  his  title  has  come  to  William  Barron,  the  de- 
fendant's father,  under  whom  he  is  in  possession. 

The  plaintiflf  claims  that  the  deed  of  January  7,  1868,  to 
Paine,  and  the  bond  back  to  the  same  parties,  constituted  a 
mortgage  of  the  premises,  and  that  the  subsequent  transac- 
tions of  February  1,  1875,  between  William  Quint  and  Paine, 
extinguished  the  mortgage,  thereby  letting  in  the  plaintiflF's 
title,  upon  which  he  bases  this  action  to  recover  possession  of 
the  premises. 

While  we  are  of  the  opinion  that  the  deed  and  instrument 
of  defeasance  executed  at  the  same  time  and  between  the  same 
parties  constituted  a  mortgage,  we  feel  confident  that  the  same 


284  Bunker  v.  Babron.  [Maine, 

was  neither  paid  nor  extinguished  by  what  took  place  between 
William  Quint  and  Paine,  February  1,  1875.  At  that  time, 
to  be  sure,  everything  due  was  reckoned  up  and  embraced  in 
the  note  of  $872.34.  This  included  the  amount  specified  in 
the  first  bond,  the  several  notes  which  had  been  given  from 
year  to  year  as  interest  on  that  amount,  the  sum  of  about  $225 
lent  the  November  before,  together  with  interest  on  all  these 
sums  up  to  the  time  the  note  was  given.  And  we  may  well 
assume  that  it  contained  all  the  other  indebtedness  from  the 
Quints  contracted  between  the  time  when  the  first  bond  was 
given  and  the  time  when  the  note  was  dated,  inasmuch  as  the 
first  bond  provided  for  the  payment  of  all  other  debts,  in  ad- 
dition to  the  specific  sum  therein  named,  which  the  obligees 
should  thereafter  contract  with  the  obligor, — and  inasmuch 
also,  as  William  Quint  himself  states,  that  the  note  was  given 
not  only  for  the  sum  named  in  the  first  bond,  but  for  "  all 
jther  indebtedness  to  said  Paine  from  us."  His  testimony  is 
that  the  note  was  given  in  payment  of  all  matters  between 
the  Quints  and  said  Paine.  The  question  is,  whether  it  was 
such  payment  as  amounted  to  an  extinguishment  of  the  mort- 
gage. Paine  is  dead,  and  his  testimony  is  not  before  us.  The 
circumstances  surrounding  the  transaction,  taken  in  connection 
with  the  evidence  in  the  case,  have  an  important  bearing  upon 
the  question,  and  aSbrd  sufl&cient  light  by  which  we  are  ena- 
bled, we  think,  to  judge  correctly  of  the  intention  of  the  par- 
ties relative  to  that  transaction. 

It  is  the  well-settled  rule  of  law  in  this  state,  as  also  in 
Vermont  and  Massachusetts,  that  a  negotiable  note  given  for 
a  simple  contract  debt  is  prima  facie  to  be  deemed  a  payment 
or  satisfaction  of  such  debt.  But  it  is  equally  well  settled,  if 
not  as  frequent  in  its  application,  that  this  presumption  may 
be  rebutted  and  controlled  by  evidence  that  such  was  not  the 
intention  of  the  parties:  Fowler  v.  Ludwig,  34  Me.  460;  Dodge 
V.  Emerson,  131  Id.  467.  From  these  and  many  other  cases 
it  may  be  seen  that  the  presumption  relates  to  the  intention 
of  the  parties,  and  that  such  presumption  may  be  rebutted  by 
proof  of  facts  or  circumstances  under  which  the  negotiable 
paper  was  received,  showing  that  it  was  not  intended  by  the 
parties  to  operate  as  payment.  Whenever  it  may  properly  be 
inferred  that  the  parties  did  not  so  intend,  the  court,  when  in- 
vested with  authority  so  to  do,  will  ascertain  and  carry  out  the 
intention  of  the  parties. 
.    The  circumstances  which  might  have  such  an  eflfect  are  so 


Feb.  1887.]  Bunker  v.  Barron.  28& 

numerous,  even  in  the  decided  cases,  that  it  would  not  be 
proper  even  if  it  were  possible  to  enumerate  them  in  a  single 
opinion.  Of  the  very  many  that  have  been  spoken  of  by  the 
courts,  we  may  properly  refer  to  a  few  as  bearing  somewhat 
upon  the  questions  involved  in  the  case  before  us. 

Thus  it  has  been  held  that  where  a  note  is  taken  in  igno- 
rance of  the  facts,  or  under  a  misapprehension  of  the  rights 
of  the  parties,  as  where  the  negotiable  paper  is  not  binding 
on  all  the  parties  primarily  liable,  the  presumption  that  it 
was  taken  in  payment  is  rebutted:  Paine  v.  Dwinel,  53  Me. 
52;  Kidder  v.  Knox,  48  Id.  555;  Melledge  v.  Boston  Iron  Co.,  5 
Cush.  170;  51  Am.  Rep.  59;  Strang  v.  Hirst,  61  Me.  15. 

In  a  number  of  the  decided  cases  it  has  been  held  that 
where  the  debt  consists  of  a  note  secured  by  mortgage,  the 
renewal  of  the  note  is  not  to  be  presumed  a  payment  so  as  to 
discharge  the  mortgage:  Taft  v.  Boyd,  13  Allen,  86;  in  which 
case  it  was  held  that  there  is  no  conclusive  presumption 
that  a  note  and  mortgage  taken  for  the  amount  found  due 
upon  a  computation  of  the  amounts  of  former  notes  secured 
by  mortgages,  as  well  as  of  mutual  claims  unsecured  by  mort- 
gage, were  accepted  in  payment  and  discharge  of  such  former 
notes  and  mortgages. 

In  Kidder  v.  Knox,  48  Me.  555,  it  was  laid  down  as  a  correct 
principle  of  law  that  whenever  it  appears  that  the  creditor  had 
other  and  better  security  than  such  note  for  the  payment  of 
his  debt,  it  will  not  be  presumed  that  he  intended  to  abandon 
such  security  and  rely  upon  his  note. 

To  the  same  effect  may  be  cited  the  case  of  Lovell  v.  Wil- 
liams, 125  Mass.  442,  in  which  the  court  Bay  that  the  fact  that 
Buch  presumption  of  payment  would  deprive  the  creditor  tak- 
ing the  note  of  the  substantial  benefit  of  some  security,  such 
as  a  mortgage,  guaranty,  or  the  like,  would  be  sufficient  evi- 
dence to  meet  and  repel  the  presumption.  And  the  same 
principle  may  be  found  in  the  following  cases:  Maneelyy.  Mc- 
Oee,  6  Id.  143;  4  Am.  Dec.  105;  Cowan  v.  Wheeler,  31  Me.  443; 
Curtis  V.  Hubbard,  9  Met.  328;  Tucker  v.  Drake,  11  Allen,  147; 
Parham  Machine  Co.  v.  Brock,  113  Mass.  196.  In  the  case  last 
cited  a  bond  with  sureties  was  given,  conditioned  that  the 
principal  should  pay  for  all  purchases  made  by  him  from  the 
obligee,  and  it  was  held  that  the  bond  remained  in  force,  not- 
withstanding the  obligee  received  the  notes  of  the  principal 
for  purchases  made  by  him.  "  Taking  the  notes,  therefore," 
the  court  say,  "  did  not  extinguish  the  debt  or  discharge  the? 


286  Bunker  v.  Barron.  [Maine, 

sureties.  Even  if  the  notes  were  treated  as  payment,  the 
sureties  would  be  held,  for  they  bind  themselves  in  terms  to 
pay  all  notes  given  to  the  plaintiffs  by  Brock  and  Delano  for 
machines  purchased." 

Moreover,  in  another  case,  where  a  bond  was  given,  condi- 
tioned to  secure  the  balance  of  account,  and  the  debtor  gave 
his  negotiable  promissory  note  to  the  creditor  for  the  amount 
of  the  debt,  and  received  a  receipt  from  the  creditor  for  the 
balance  of  account,  it  was  held  that  the  note  was  not  in- 
tended as  payment  of  the  debt,  or  a  discharge  of  the  bond: 
Butts  V.  Dean,  2  Met.  76;  35  Am.  Dec.  389. 

"  The  general  doctrine  is,  that  the  taking  of  a  note  is  to  be 
regarded  as  payment  only  when  the  security  of  the  creditor 
is  not  thereby  impaired":  Paine  v.  Dwinel,  53  Me.  54. 

In  many  if  not  most  of  the  cases  where  the  presumption  of 
payment  has  been  held  to  apply,  it  will  be  found  that  the 
original  claim  was  not  secured.  But  the  cases  are  numerous 
in  which  this  presumption  has  been  held  to  be  overcome  by 
the  facts  and  circumstances  surrounding  the  transaction  of 
giving  the  note,  and  in  addition  to  those  already  cited  may 
be  added  the  following  as  among  the  more  prominent:  Varner 
V.  Noblehorough,  2  Me.  125;  11  Am.  Dec.  48;  Wilkins  v.  Reed, 
6  Me.  221;  19  Am.  Dec.  211;  Descadillas  v.  Harris,  8  Me.  304; 
Mehan  v.  Thompson,  71  Id.  501;  Parkhurst  v.  Cummings,  56 
Id.  159;  Perrin  v.  Keene,  19  Id.  358;  36  Am.  Dec.  759;  Atkin- 
son V.  Minot,  75  Me.  193;  Thurston  v.  Blanchard,  22  Pick.  18; 
33  Am.  Dec.  700;  Appleton  v.  Parker,  15  Gray,  174;  Grimes  v. 
Kimball,  3  Allen,  520;  Holmes  v.  First  Nat.  Bank,  126  Mass. 
359;  Dana  v.  Binney,  7  Vt.  493;  Seymour  v.  Darrow,  31  Id. 
122. 

The  facts  in  this  case  irresistibly  repel  the  presumption  that 
the  note  was  intended  as  payment  and  discharge  of  the  secu- 
rity of  January  7,  1868.  Not  one  dollar  was  paid  at  the  time 
the  note  was  given.  Nor  is  it  pretended  that  a  dollar  has 
actually  ever  been  paid  upon  the  mortgage  since  its  first  ex- 
istence to  the  time  this  suit  was  brought.  That  mortgage  was 
a  lien  upon  the  home  farm.  The  mortgagee,  on  the  very  day 
the  note  was  given,  purchased  the  prospective  right  of  dower 
from  the  wife  of  one  of  the  mortgagors,  paying  therefor  one 
hundred  dollars.  For  what  purpose,  it  may  well  be  asked, 
was  this  purchase  of  the  prospective  right  of  dower  in  the 
farm  from  the  wife  of  William  Quint,  if  the  intention  of  the 
mortgagee  was,  in  taking  the  note  in  question,  to  release  and 


Feb.  1887.]  Bunker  v.  Barron.  287 

discharge  his  mortgage  which  he  then  held  upon  it?  If  he  was 
a  stranger  to  any  title  in  the  farm  at  the  time  he  receiyed  the 
deed  of  the  wife's  dower,  certainly  it  would  amount  to  nothing 
to  him,  as  nothing  would  thereby  pass  by  such  deed:  Harri- 
man  v.  Gray,  49  Me.  537. 

It  is  apparent  from  the  transactions  that  the  parties  under- 
stood and  intended,  when  the  note  was  given,  that  the  mort- 
gagee should  retain  his  title  till  the  debt  was  paid.  This  is 
ehown  not  only  from  the  fact  that  the  mortgagee  at  that  time 
purchased  in  the  dower  interest,  but  also  from  the  fact  that  in 
the  bond  given  at  that  time  the  title  to  the  farm  is  therein 
recognized  as  still  remaining  in  the  mortgagee.  Nor  could  it 
be  reasonably  supposed  that  had  not  such  been  the  under- 
standing of  the  parties,  the  mortgagee  would  have  been  will- 
ing to  release  the  most  valuable  security,  and  rely  alone  upon 
the  individual  name  of  William  Quint  and  a  piece  of  real 
estate  which  had  but  recently  been  purchased  for  the  sum  of 
$225.  This  understanding  and  intention  is  also  manifest 
from  the  fact  that  when  the  indebtedness  of  the  Quints  was 
reckoned  up,  and  the  note  taken,  and  new  bond  given,  there 
was  no  cancellation  or  surrender  of  the  bond  of  January  7, 
1868,  neither  was  there  any  conveyance  made  or  asked  for  in 
accordance  with  the  terms  of  that  bond:  Watkins  v.  Hill,  8 
Pick.  523. 

In  view  of  these  facts  and  circumstances,  together  with  the 
evidence  before  us,  it  is  impossible  to  arrive  at  any  other  con- 
clusion than  that  it  was  the  intention  of  the  parties,  by  their 
transactions  of  February  1,  1875,  to  leave  the  former  security 
unafifected,  and  that  the  note  was  not  intended  as  payment  of 
the  debt  due  at  that  time.  There  was  a  change  in  the  form 
of  the  debt,  but  there  was  no  actual  payment  of  it.  That  is 
not  enough  to  afifect  the  mortgage.  Nothing  but  payment  of 
the  debt,  or  its  release,  will  discharge  a  mortgage:  Crosby  v. 
Chase,  17  Me.  369;  Parkhurst  v.  Cummings,  56  Id.  159;  Ladd 
V.  Wiggin,  35  N.  H.  426;  69  Am.  Dec.  551.  "  The  mortgage 
remains  a  lien  until  the  debt  it  was  given  to  secure  is  satis- 
fied, and  is  not  affected  by  a  change  of  the  note,  or  by  giving 
a  different  instrument  as  evidence  of  the  debt":  Jones  on 
Mortgages,  see.  924;  Pomroy  v.  i2ic«,  16  Pick.  24. 

At  the  time  the  plaintiff  acquired  Ills  mortgage  from  William 
Quint,  neither  of  the  bonds  which  had  been  given  by  Paine 
had  been  recorded,  and  the  apparent  record  title  to  the  prem- 
iiet  was  in  John  S.  Paine.    The  bonds  were  not  placed  upon 


288  Hudson  v.  Coe.  '  [Maine, 

record  till  May  26, 1876, — more  than  a  year  and  eight  months 
after  the  plaintiflF's  title  accrued,  and  then  by  his  procure- 
ment. Moreover,  as  late  as  February  24,  1879,  the  plaintiff 
appears  to  have  understood  that  Paine's  mortgage  was  a  valid, 
subsisting  claim  upon  the  premises,  and  that  he  held  only  the 
right  of  redemption  under  it,  as  appears  by  his  statements  in 
writing  contained  in  the  notice  and  demand  by  him  on  Paine's 
administrator  for  an  account  of  the  sum  due  on  the  mortgage. 

Paine's  interest  passed  and  became  vested  in  William  Bar- 
ron, who  is  in  possession,  as  the  evidence  discloses,  by  his 
agent  or  servant,  —  the  defendant  in  this  suit.  The  rights  of 
the  defendant  are  the  same,  therefore,  as  those  of  the  person 
whom  he  represents  by  that  possession.  This  action  could 
not  be  maintained  by  the  mortgagor  against  the  mortgagee  or 
his  assignee  in  possession  without  showing  a  satisfaction  of 
the  mortgage.  Neither  can  it  be  maintained  by  the  grantee 
of  the  mortgagor:  Woods  v.  Woods,  66  Me.  206;  Jewett  v.  Ham- 
lin,  68  Id.  172;  Rowell  v.  Jewett,  71  Id.  409. 

Judgment  for  the  defendant. 


CoKVBTANCE  Absolxttb  IN  Terms,  accompanied  by  a  separate  defeasance, 
is  a  mortgage:  Manufacturers'  etc.  Bank  v.  Bank  of  Pennsylvania,  42  Am. 
Dec.  240,  and  note  246;  Stephens  v.  Sherrod,  55  Id.  776,  and  note  782. 

Note  Given  fob  Simple  Contract  Debt  is  prima  fade  evidence  of  pay* 
ment:  Shumway  v.  Reed,  56  Am.  Dec.  679,  and  note  681.  That  such  evi- 
dence may  be  rebutted  by  showing  the  intention  of  the  parties,  see  Id.} 
Mellege  v.  Boston  Iron  Co.,  51  Id.  59,  and  note  73. 

Note  Given  fob  Antecedent  Debt  is  not  payment  of  it:  Weymovihv.  San- 
bom,  80  Am.  Dec.  144,  note  149;  Blunt  v.  Walker,  78  Id.  709,  and  note  718; 
McMurray  v.  Taylor,  77  Id.  611,  and  note  613;  Nightingale  v.  Chaffee,  22 
Am.  Eep.  531. 

MoBTQAOB  CAN  ONLY  BE  DisOHAROED  by  payment  or  by  release :  Smithy. 
Stanley,  58  Am.  Deo.  771,  note  773;  Ladd  v.  Wiggin,  69  Id.  651,  and  note  669. 


Hudson  v.  Coe. 

[79  MAINE,  68.] 

TsNANT  IN  Common  mat  Maintain  Action  or  Indebitatus  Assumpsit 
against  his  co-tenant  who  has  received  more  than  his  share  of  the  rents 
and  profits,  and  this,  independently  of  section  20,  chapter  95,  of  the  Re- 
vised Statutes  of  Maine. 

Dispute  in  Title  will  not  Prevent  Tenant  in  Common  from  maintain- 
ing an  action  of  indebitatus  assumpsit  against  his  co-tenant  for  receiving 
more  of  his  share  of  the  rents  and  profits,  if  the  plaintiff  was  not  dis- 
seised of  his  estate  at  the  date  when  such  rents  and  profits  were  received. 


Feb.  1887.]  Hudson  v.  Coe,  289^^ 

Ik  AcnOK  of  iNDEBiTAi'CS  AsscrnPSiT  by  one  tenant  in  common  against 
another,  the  plaintiff  cannot  recover  any  rents  and  profits  received  by 
defendant  before  plaintiff  'a  title  accrued. 

Onb  Co-tena^jt  D0E3  NOT  Di3SEi3E  ANOTHER  by  entering  upon  the  land 
under  a  tax  deed,  and  exercising  such  acts  of  ownership  as  tracing  and 
running  lines,  paying  taxes,  and  permitting  vidld  grass,  and  occasionally 
timber,  to  be  cut  from  year  to  year  on  various  portions  thereof. 

Entry  op  One  Co-tenant  is  Entry  of  All. 

Possession  of  One  Co-tenant  is  Always  Presttmed  to  be  in  accordance 
with  a  common  title  until  some  notorious  and  unequivocal  act  of  exclu- 
sion occurs. 

Assumpsit  by  one  tenant  in  common  against  his  co-tenant 
to  recover  a  share  of  stumpage  collected  by  the  defendant  &om 
the  lands  of  the  co-tenancy. 

Charles  A.  Bailey,  for  the  plaintiff. 
A.  W.  Paine,  for  the  defendant. 

By  Court,  Foster,  J.  The  parties  to  this  snit  Me  tenants 
in  common  and  undivided  of  township  number  2,  range  8 
north,  of  Waldo  patent  in  Penobscot  County,  containing  about 
thirty-six  square  miles.  The  plaintiflF  claims  to  recover,  as 
owner  of  eleven  ninety-sixths,  his  share  of  stumpage,  which^ 
the  defendant,  as  part  owner  of  the  township,  has  collected  and: 
retains  in  his  hands.  The  action  is  general  indebitatus  aS' 
sumpsit  for  money  had  and  received,  and  is  brought,  not  upon 
Revised  Statutes,  chapter  95,  section  20,  relating  to  actions  be- 
tween tenants  in  common,  but  at  common  law,  based  upon  the 
statute  of  4  &  5  Anne,  c.  16,  which  is  declared  to  be  a  part  of 
the  common  law  of  this  state:  Richardson  v.  Richardson,  72 
Me.  403. 

1.  The  defendant  contends  that  the  plaintiff  has  no  remedy 
at  common  law,  and  that  if  entitled  to  any,  it  can  exist  only 
by  virtue  of  the  Revised  Statutes,  chapter  95,  section  20,  after 
demand  in  a  special  action  of  assumpsit.  We  are  not  inclined 
to  this  view,  and  such,  we  think,  is  not  the  law. 

The  ancient  rule  of  the  old  common  law,  as  laid  down  by 
Lord  Coke  (Co.  Lit.  199  b),  was,  that  one  tenant  in  common 
could  not  maintain  an  action  against  his  co-tenant  for  taking 
the  whole  profits  of  the  common  estate,  unless  he  had  been 
appointed  bailiff  by  his  co-tenant.  It  was  thus  stated:  "If 
one  tenant  in  common  maketh  his  companion  his  bailiff  of  bia 
part,  he  shall  have  an  action  of  account  against  him.  But, 
although  one  tenant  in  common,  ivithout  being  made  bailifif, 
take  the  whole  profits,  no  action  of  account  lies  against  him; 

All.  St.  Bkp.,  Vou  I.  — 19 


1J90  Hudson  v.  Coe.  [Maine, 

for,  in  an  action  of  account,  he  must  charge  him  either  as  a 
guardian,  bailiff,  or  receiver,  which  he  cannot  do  unless  he  con- 
stitute him  his  bailiff."  Sole  occupancy  alone  was  not  sufficient 
upon  which  to  maintain  an  action.  Each  was  said  to  occupy 
per  mi  et  per  tout,  and  had  a  right  to  occupy  the  whole,  if  the 
other  tenant  did  not  see  fit  to  go  in  and  occupy  with  him. 
Such  occupancy  was  held  to  be  no  exclusion  of  the  other,  and 
no  action  would  lie  against  the  tenant  who,  by  such  occu- 
pancy, had  taken  the  entire  profits.  But  by  statute  4  &  5 
Anne,  c.  16,  sec.  27,  this  old  doctrine  of  the  common  law  of 
England  was  changed,  and  it  was  therein  provided  that  an 
action  of  account  might  be  maintained  by  one  joint  tenant  or 
tenant  in  common  against  the  other,  charging  him  as  bailiff 
for  receiving  more  than  his  joint  share  or  proportion.  But  in 
order  to  maintain  such  action,  it  was  necessary  that  one  ten- 
ant should  show,  not  mere  occupation  of  the  premises  by  an- 
other tenant  in  common,  but  an  actual  receipt  by  him  of  the 
rents  and  profits  over  and  above  his  share  thereof,  and  which 
actually  belonged  to  his  co-tenant.  To  avoid  the  somewhat 
tedious  proceedings  pertaining  to  the  old  action  of  account, 
an  action  on  the  case  upon  a  promise  to  account  was  at  first 
substituted:  Brigham  v.  Eveleth,  9  Mass.  541;  and  afterwards 
Lord  Holt,  in  construing  the  statute,  came  to  the  conclusion 
that  whenever  account  could  be  maintained,  indebitatus  as- 
sumpsit might  be  also;  holding  that  the  statute,  being  a  reme- 
dial one,  it  ought  to  receive  a  liberal  construction:  Jones  v. 
Harraden,  9  Id.  540.  While  the  right  of  action  was  founded 
on  the  statute  of  Anne,  and  not  by  any  right  under  the  old 
common  law,  from  the  liberal  construction  placed  upon  it  by 
a  long  series  of  decisions,  it  became  as  firmly  settled  that  the 
action  of  general  indebitatus  assumpsit  for  money  had  and  re- 
ceived would  lie,  in  place  of  the  old  action  of  account,  by  one 
tenant  in  common  against  his  co-tenant,  as  bailiff,  for  receiv- 
ing more  than  his  share  of  the  rents  and  profits.  Such  was 
the  doctrine  laid  down  in  the  cases  to  which  we  have  referred; 
and  this  form  of  action  was  sustained  in  Miller  v.  Miller,  7 
Pick.  133,  19  Am.  Dec.  264,  and  9  Pick.  34,  to  recover  money 
due  for  the  share  of  one  tenant  in  common  in  the  sale  of  trees 
from  the  common  estate.  It  was  allowed  in  Monroe  v.  Luke, 
1  Met.  459,  which  was  assumpsit  by  one  tenant  in  common 
against  his  co-tenant  to  recover  his  share  of  rents;  and  it  was 
there  held  that  where  it  was  a  claim  for  money  actually  re- 
ceived by  the  defendant,  to  which  in  some  form  the  plaintiff 


I    Feb.  1887.]  Hudson  v.  Coe.  291 

has  title,  it  could  be  conveniently  settled  in  this  form  of  ac- 
tion. It  is  said  in  Fanning  v.  Chadwick,  3  Pick.  424,  15  Am. 
Dec.  233,  that  the  action  of  account  has  become  nearly  obso- 
lete in  England,  and  that  there  seems  to  be  no  necessity  for 
reviving  it  here,  and  that  assumpsit  now  has  all  the  advan- 
tages, without  the  disadvantages,  peculiar  to  an  action  of 
account.  In  support  of  the  same  principle  may  be  cited 
Cochran  v.  Carrington,  25  Wend.  410;  Richardson  v.  Richard- 
son, 72  Me.  403;  Gowen  v.  Shaw,  40  Id.  58;  Cutler  v.  Currier, 
54  Id.  91;  Holmes  v.  Hunt,  122  Mass.  513;  23  Am.  Rep.  381; 
Sargent  v.  Parsons,  12  Mass.  152;  Dickinson  v.  Williams,  11 
.  Cush.  258;  59  Am.  Dec.  142.  It  is  an  equitable  form  of  ac- 
tion to  recover  money  which  the  defendant,  in  equity  and 
good  conscience,  ought  not  to  retain. 

But  when  resorted  to  as  the  common-law  action,  —  the  out- 
growth of  the  statute  of  Anne,  and  independently  of  the  Re- 
vised Statutes,  chapter  95,  section  20,  —  by  one  tenant  in 
common  against  his  co-tenant,  it  is  to  be  "  restricted  to  cases 
where  the  money  has  been  actually  received,  and  the  liability 
to  account  has  resulted  in  a  duty-  to  pay  money,  or  where  the 
defendant  holds  the  share  as  bailiJBf  of  the  plaintiff,  or  the  oc- 
cupation has  been  by  consent":  Cutler  v.  Currier,  54  Me.  91. 

2.  It  is  also  claimed  in  defense  that  this  action  cannot  be 
sustained,  because  the  question  of  title  is  involved  in  it.  But 
we  have  no  doubt  the  action  will  lie,  notwithstanding  there 
may  be  a  mere  dispute  raised  by  the  defendant  concerning  the 
title,  provided  the  plaintiff  is  owner  of  the  estate,  and  was  not 
disseised  at  the  date  when  the  income  from  the  common  estate 
was  received  in  money  by  the  defendant.  Such  is  the  con- 
clusion of  this  court  in  the  recent  case  of  Richardson  v.  Rich' 
ardson,  supra.  Were  it  otherwise,  the  plaintiff  in  any  case 
seeking  his  common-law  remedy  under  the  statute  of  Anne, 
notwithstanding  his  title  and  seisin  be  complete,  might  be 
subjected  to  the  annoyance  as  well  as  expense  of  a  nonsuit, 
whenever  the  defendant  co-tenant  might  see  fit  to  dispute  his 
title.  We  do  not  mean  to  be  understood  as  denying  the  gen- 
eral doctrine,  where  it  has  its  proper  application,  that  the 
title  to  real  estate  is  not  to  be  tried  in  an  action  of  assumpsit; 
but  we  are  satisfied  that  it  has  no  application  in  the  present 
case.  It  must  also  be  borne  in  mind  that  this  is  not  an 
action  for  use  and  occupation  of  the  common  estate  under  the 
Revised  Statutes,  chapter  95,  section  20,  which  is  a  modifica- 
tion of  the  statute  of  Anne,  but  of  indebitatus  assumpsit  au- 


292  Hudson  v.  Coe.  [Elaine, 

thorized,  through  a  long  line  of  decisions,  by  the  latter  statute 
as  the  common-law  action  to  recover  the  plaintiflf 's  due  pro- 
portion of  moneys  in  the  hands  of  the  defendant  which  he  has 
received  from  the  common  estate. 

Many  of  the  decisions  to  which  our  attention  has  been  called, 
and  in  which  it  is  held  that  the  title  to  real  estate  cannot  be 
tried  in  an  action  of  assumpsit,  are  those  for  use  and  occupa- 
tion depending  upon  contract,  express  or  implied,  between  the 
parties,  and  which  have  no  application  to  the  case  at  bar. 

There  are  many  cases  where  the  right  to  recover  depends 
upon  the  title,  yet  they  are  not  cases  in  which  the  title  is  tried, 
within  the  meaning  of  the  rule.  Neither  does  the  rule  prevent 
an  action  for  money  had  and  received  in  many  cases  which 
require  an  investigation  of  title,  as  was  held  in  Pickman  v. 
Trinity  Church,  123  Mass.  6;  25  Am.  Rep.  1. 

The  plaintiff  in  this  action  undoubtedly  has  the  right  to 
show  his  title  and  seisin  to  the  estate  owned  by  him  at  the 
time  when  the  defendant  received  the  income.  Upon  proof  of 
these  facts  he  would  be  entitled  to  his  remedy  under  the  stat- 
ute of  Anne.  "  If  the  defendant  were  in  possession  of  the 
estate  under  a  denial  of  the  plaintiff's  title,  it  would  be  evi- 
dence tending  to  show  the  disseisin  of  the  plaintiff,  and  if  it 
resulted  in  proof  of  that  fact,  —  as  it  might  well  do  if  unex- 
plained,—  then,  and  not  till  then,  would  the  relative  position 
of  the  parties  be  changed":  Richardson  v.  Richardson,  supra. 

To  make  out  his  title,  then,  the  plaintiff  starts  with  the 
unquestioned  title  to  five  ninety-sixths  of  the  township  by 
deeds  from  the  heirs  of  Henry  Ilsley  who  was  the  owner  of 
one  sixteenth  in  common  and  undivided  in  1839;  and  to  six 
ninety-sixths  by  levy  of  an  execution  upon  a  judgment  recov- 
ered in  the  United  States  circuit  court  for  the  district  of  Maine, 
at  the  October  term,  1841,  in  favor  of  the  Merchants'  National 
Bank  of  Newburyport,  against  Seth  Paine  and  John  L.  Me- 
serve,  and  from  said  bank  through  sundry  conveyances  to 
himself  by  deed  bearing  date  of  July  1,  1884. 

It  is  in  reference  to  the  plaintiff's  title  under  this  levy  that 
the  defendant  takes  issue  with  the  plaintiff,  and  a  consider- 
able portion  of  the  argument  of  counsel  has  been  devoted  to 
this  branch  of  the  case.  We  do  not  deem  it  necessary,  how- 
ever, to  enter  upon  an  investigation  of  title  under  the  levy. 
inasmuch  as  it  is  not  claimed  that  the  plaintiff  obtained  any 
title  to  the  six  ninety-sixths  therein  mentioned  till  July  1, 
1884,  —  several  months  after  the  stumpage  had  been  taken  off, 


Feb.  1887.]  HudsoxN  v.  Coe.  293 

and  the  money  had  been  received  by  the  defendant.  If  other- 
wise entitled  to  recover,  the  plaintiff  can  recover  only  his  due 
proportion  of  such  money  as  was  received  by  the  defendant 
from  stumpage  sold  after  his  title  accrued:  Kimball  v.  Lewis- 
ton  Steam  Mill  Co.,  55  Me.  499.  From  an  examination  of  the 
deeds  from  the  heirs  of  Henry  Ilsley,  it  will  be  seen  that  the 
plaintiff  at  that  time  had  acquired  title  to  only  four  ninety- 
sixths  of  the  township. 

3.  Admitting,  however,  the  plaintiff's  title  through  deeds 
from  the  heirs  of  Ilsley,  the  next  ground  of  defense  interposed 
to  the  plaintiff's  action  is  that  he  and  his  predecessors  in  title 
have  been  disseised  by  the  defendant  and  Samuel  H.  Blake, — 
the  other  tenant  in  common,  —  and  that  they  have  acquired  by 
adverse  possession  for  more  than  twenty  years  title  to  the  whole 
township,  and  are  entitled  to  retain  the  entire  stumpage. 

To  establish  this  claim  of  disseisin,  the  defendant,  who  was 
the  admitted  owner  of  seven  sixteenths  and  his  alleged  joint 
disseisor  of  another  seven  sixteenths, — the  two  owning  seven 
eighths  of  the  whole  township,  —  puts  in  a  tax  title  acquired  by 
themselves  of  the  entire  township,  and  claims  under  this  re- 
corded deed,  as  color  of  title,  a  disseisin  of  their  co-tenants. 

The  evidence  upon  which  this  claim  of  adverse  possession 
and  disseisin  is  based  is  detailed  by  the  defendant, — in  sub- 
stance, consisting  of  acts  of  ownership  exercised  over  this  town- 
ship, such  as  tracing  and  running  lines,  keeping  off  trespassers, 
permitting  wild  grass  to  be  cut  from  year  to  year  from  small 
portions  of  it,  and  occasionally  timber  from  other  portions, 
paying  taxes,  etc.  This  whole  township  of  thirty-six  square 
miles  was  principally  forest  and  timber  land, — all  in  its 
natural  and  unimproved  state.  The  question  we  are  asked 
to  consider  in  this  case  certainly  presents  the  doctrine  of  dis- 
seisin somewhat  diffusively  applied.  The  cases  are  numerous, 
however,  where  acts  even  stronger  than  are  furnished  in  this 
case  are  declared  to  be  insufficient  to  work  a  disseisin  even  of 
the  sole  owner  of  unimproved  lands:  Chandler  v.  Wilson,  77 
Me.  76;  Slater  v.  Jepherson,  6  Gush.  129;  Parker  v.  Parker,  1 
Allen,  245;  Little  v.  Megquier,  2  Me.  178;  Thompson  v.  Bur- 
hans,  79  N.  Y.  98,  99. 

But  acts  which  would  properly  be  held  to  constitute  a  dis- 
seisin if  done  by  a  stranger  have  no  such  effect  if  done  by  a 
tenant  in  common,  as  the  possession  of  one  tenant  in  common 
is  that  of  all.  The  entry  of  one  is  the  entry  of  both.  Either 
has  the  right  to  actual  possession,  and  such  possession  will  be 


294  Hudson  v.  Coe.  [Maine, 

presumed  to  be  in  accordance  with  his  title, — rightful  rather 
than  wrongful, — till  some  "notorious  and  unequivocal  act  of 
exclusion  shall  have  occurred  ":  Colburn  v.  Mason,  25  Me.  434; 
43  Am.  Dec.  290.  And  by  all  the  authorities  it  is  settled  that 
mere  possession,  accompanied  by  no  act  that  can  amount  to 
an  ouster  of  the  other  co-tenant,  or  give  notice  to  him  that  such 
possession  is  adverse,  will  not  be  held  to  amount  to  a  disseisin 
of  such  co-tenant:  McClung  v.  Ross,  5  Wheat.  124.  The  acts 
of  ownership  by  one  tenant,  which  if  done  by  a  stranger  would 
operate  as  a  disseisin  of  the  other  co-tenant,  must  be  done,  as 
was  said  in  Ingalls  v.  Newhall,  139  Mass.  273,  "  in  the  asser- 
tion of  an  independent  title,  inconsistent  with  that  of  the  co- 
tenant,  and  be  of  such  character  that  it  is,  or  must  reasonably 
be  held  to  be,  known  by  those  in  derogation  of  whose  title  they 
are  done  that  this  is  so."  And  it  has  been  held  that  the  entry 
of  a  tenant  in  common  upon  property,  even  if  he  takes  the 
rents,  cultivates  the  land,  or  cuts  the  wood  and  timber  without 
accounting  or  paying  for  any  share  of  it,  will  not  ordinarily  be 
considejfed  as  adverse  to  his  co-tenants  and  an  ouster  of  them, 
but  in  support  of  the  common  title:  Thornton  v.  York  Bank,  45 
Me.  158. 

This  principle  has  been  thus  expressed  by  the  Vermont  court 
in  the  case  of  Roberts  v.  Morgan,  30  Vt.  325,  in  which  the 
court  say:  "Where  one  joint  owner  is  in  possession  of  the 
whole,  the  legal  presumption  is,  that  he  is  keeping  possession, 
not  only  for  himself  but  for  his  co-tenant,  according  to  their 
respective  interests,  and  the  other  joint  owners  have  the  right 
to  so  understand  until  they  have  notice  to  the  contrary;  and 
the  statute  would  only  run  from  the  time  of  such  notice.  We 
consider  the  principle  substantially  the  same  as  between  land- 
lord and  tenant,  as  to  converting  a  mere  fiduciary  possession 
into  an  adverse  or  hostile  one." 

The  nature  of  the  property  in  which  the  tenants  are  owners 
— its  character,  situation,  and  extent — must  be  taken  into 
consideration,  moreover,  in  determining  the  question  of  pos- 
session and  occupation,  and  whether  it  is  exclusive  or  other- 
wise. And  between  tenants  in  common  it  is  very  diflficult  to 
determine  by  any  fixed  rule  what  may  constitute  disseisin. 
Each  case  must  be  judged  by  its  own  particular  circumstances 
and  the  facts  connected  with  it. 

In  this  case  the  facts  are  plain,  and  there  is  but  little  con- 
troversy concerning  them.  Nor  do  we  consider  it  necessary 
to  extend  this  opinion  by  any  further  reference  to  them.     As- 


March,  1887.]  Knapp  v.  Bailey.  295 

suming  them  all  to  be  true,  they  do  not  show  such  exclusive 
possession,  or  such  notorious  and  unequivocal  acts  of  exclu- 
sion, as  to  amount  to  a  disseisin  of  the  plaintiff  or  his  prede- 
cessors in  title.     The  action,  therefore,  is  maintainable. 

The  defendant  admits  that  he  received  a  certain  amount  of 
money  from  the  sale  of  stumpage  in  the  fall  and  winter  of 
1883-'84.  That  sum  was  $691.79.  At  the  time  this  stumpage 
was  taken  from  the  township,  the  plaintiff  had  acquired  title 
to  only  four  ninety-sixths  of  it,  and  that  is  the  proportion  to 
which  he  is  entitled  of  the  money  in  the  defendant's  hands. 

Judgment  for  plaintiff  for  $28.82,  with  interest  thereon  from 
the  date  of  the  writ. 


AssTTMPsrr  will  Lib  bt  Onb  Co-tenant  against  the  other  to  recover  hia 
share  of  the  rents  and  profits:  Fiquet  v.  Allison,  86  Am.  Dec.  54,  and  note; 
Crane  v.  Waggoner,  89  Id.  493;  Bruce  v.  Hastings,  98  Id.  692,  and  note  695; 
Early  v.  Friend,  78  Id.  649,  note  on  the  subject  665;  Israel  v.  Israel,  97  Id. 
671. 

Entet  of  One  C!o-tenant  inures  to  the  benefit  of  all:  Gossom  v.  Donald- 
eon,  68  Am.  Dec.  723;   Warfield  v.  Lindell,  11  Id.  614. 

Possession  of  One  Co-tenant  is  presumed  not  to  be  adverse  to  his  co- 
tenant:  Bertkold  v.  Fox,  98  Am.  Dec.  243,  and  note  247;  Holky  v.  Hawley, 
94  Id.  350,  note  358;  Bernecker  v.  Miller,  93  Id.  309,  note  311.  And  to  rebut 
such  presumption,  actual  ouster  must  be  shown:  Israel  v.  Israel,  96  Id.  571, 
and  note  576. 


Knapp  v.  Bailey. 

[79  Maine,  195.] 

Grantor  is  C!oiipetent  Witness  against  bis  Grantee  to  prove  that  the 
conveyance  under  which  he  had  acquired  an  apparent  title  was  given  to 
secure  a  debt,  and  therefore  constituted  an  equitable  mortgage. 

CJonveyance  may  in  Equity  be  Controlled  by  Oral  Evidence  showing 
that  it  was  given  and  received  merely  as  security  for  a  debt. 

Notice  of  Trust.  —  Provision  of  the  revised  statutes  of  Maine,  declaring 
that  a  purchaser  for  a  valuable  consideration  cannot  be  defeated  by  a 
trust  of  which  he  has  no  notice,  means  actual  notice. 

Actual  Notice  may  be  either  Express  or  Implied. 

Impued  Notice  is  Imputed  to  Party  shown  to  be  conscious  of  having 
means  of  knowledge  which  he  does  not  use,  as  where  he  chooses  to  remain 
voluntarily  ignorant,  or  is  grossly  negligent  in  not  pursuing  inquiries 
suggested  by  known  facts. 

Actual  Notice  may  be  Proved  by  Direct  Evidence,  or  inferred  from 
circumstances. 

Onb  is  Chargeable  wrru  Actual  Notice  of  Facts,  if  he  has  knowludgo 
of  such  facts  as  would  lead  a  fair  and  prudent  man  to  luako  further  in- 
quiries, and  if  such  inquiries,  if  pursued  witli  ordinary  diligence,  would 


296  Knapp  v.  Bailey  [Maine, 

have  given  him  knowledge  of  the  facts,  with  notice  of  which  he  is  sought 
to  be  charged. 

PuBCHASER  13  Chaegbd  WITH  NoTiCE  that  his  grantor  held  title  by  what 
equity  must  declare  to  be  an  invalid  deed,  when  such  grantor  was  out  of 
and  had  never  been  in  possession,  and  others  had  controlled  the  property 
in  many  ways  for  many  years,  and  when  an  examination  of  the  registry 
of  deeda  would  have  shown  conveyances  inconsistent  with  the  full  valid- 
ity of  the  deed  under  which  the  grantor  claimed,  and  when  the  purchase 
was  for  a  grossly  inadequate  price. 

Fact  that  Purchaser  Accepts  Quitclaim  Deed  is  a  circumstance  entitled 
to  consideration  in  determining  whether  he  is  a  bona  fide  purchaser  with* 
out  notice. 

Bill  to  remove  a  cloud  from  title.  The  cloud  consisted  of 
a  conveyance  which  the  plaintiff  insisted  was  given  and  ac- 
cepted to  secure  the  payment  of  a  debt  which  had  subsequently 
been  paid. 

A.  W.  Paine  and  C.  P.  Stetson,  for  the  plaintiff. 

jD.  F.  Davis  and  Charles  A.  Bailey,  for  the  defendant. 

By  Court,  Peters,  C.  J.  This  bill  seeks  to  remove  a  cloud 
overhanging  complainant's  title  to  an  undivided  parcel  of 
land, — in  effect,  to  redeem  the  land  from  an  equitable  mort- 
gage, the  allegation  being  that  the  debt  has  been  paid.  We 
can  have  no  reasonable  doubt  of  the  facts  thus  far  alleged. 

The  defendant's  grantor  was  called  as  a  witness  by  the  com- 
plainant. The  defendant  contends  that  his  testimony  was 
jiadmissible,  and  cites  cases  which  sustain  the  ordinary  prin- 
ciple that  a  grantor  cannot  dispute  with  his  grantee  the  title 
which  he  has  assumed  to  convey.  The  objection  goes  to  the 
testimony,  and  not  to  the  witness  personally.  The  principle 
of  estoppel,  which  is  invoked,  is  aimed,  not  against  the  wit- 
ness because  he  is  a  grantor,  but  against  any  oral  testimony 
to  contradict  the  terms  of  a  deed.  As  said  by  Judge  Curtis, 
in  answer  to  the  same  objection,  "the  facts  to  be  proved  were 
dehors  the  record,  and  one  witness  was  as  competent,  in  point 
of  law  [to  prove  them],  as  another."  Where  a  grantor  is  al- 
lowed to  prove  a  fact  by  another,  he  may  do  so  by  himself: 
Holhrook  V.Worcester  Bank,  2  Curt.  246, 

It  is  true,  as  a  general  rule,  that  the  effect  of  a  deed  cannot 
be  controlled  by  oral  evidence.  But  among  the  exceptions  to 
the  rule  is,  that,  in  equity,  where  the  proof  is  clear  and  con- 
vincing, a  deed  absolute  on  its  face  may  be  construed  to  be  an 
equitable  mortgage.  In  Rowell  v.  Jewett,  69  Me.  293,  this  ex- 
ceptional doctrine  was  first  allowed  to  have  operation  in  this 


March,  1887.]  Knapp  v.  Bailey.  297 

gtate.  It  was  luUy  accepted  in  Stinchjield  v.  MilliJcen,  71  Id. 
567,  where  the  opinion  says:  "  But  the  transaction  was  in 
equity  a  mortgage, — an  equitable  mortgage.  The  criterion  is 
the  intention  of  the  parties.  In  equity,  this  intention  may  be 
ascertained  from  all  pertinent  facts,  either  within  or  without 
the  written  parts  of  the  transaction.  Where  the  intention  is 
clear  that  an  absolute  conveyance  is  taken  as  a  security  for  a 
debt,  it  is  in  equity  a  mortgage.  The  real  intention  governs." 
In  Lewis  v.  Small,  71  Me.  552,  the  same  doctrine  is  admitted. 
It  has  since  been  affirmed  in  other  cases,  receiving  an  able 
discussion  in  the  late  case  of  Reed  v.  Reed,  75  Id.  264.  The 
effect  of  many  of  the  older  cases  in  this  state  has  been  swept 
away  by  this  new  principle  in  our  legal  system,  a  product  of 
the  growth  of  the  law,  very  greatly  promoted  by  legislative 
stimulation.  The  present  case  must  be  governed  by  the  equi- 
table rule  declared  in  the  later  decisions. 

Another  question  presented  by  the  case  is,  whether  the 
statutory  provision  (R.  S.,  c.  73,  sec.  12)  which  declares  that 
a  title  of  a  purchaser  for  a  valuable  consideration  cannot  be 
defeated  by  a  trust,  unless  the  purchaser  had  notice  thereof, 
means  actual  or  constructive  notice.  Section  8  of  the  same 
chapter  requires  "  actual  notice  "  of  an  unrecorded  deed  to 
defeat  a  subsequent  purchaser's  title  from  the  same  grantor. 
The  two  sections  were  incorporated  in  our  statutory  system  at 
the  same  time, — in  the  revision  of  1841.  One  requires  "  no- 
tice," the  other  "  actual  notice." 

We  think  the  difference  in  phraseology  may  be  accounted 
for  partly  on  the  idea  that  section  8  would  be  applicable  more 
to  law  cases,  and  section  12  more  to  questions  in  equity.  We 
can  have  no  doubt  that  there  may  be  cases  of  constructive 
trusts  where  section  12  would  apply.  At  the  same  time  where 
the  facts  present  questions  analogous  to  those  ordinarily  aris- 
ing under  the  other  section,  we  think  actual  notice  would  be 
required;  that  under  either  section,  in  cases  generally,  actual 
notice,  as  we  understand  the  meaning  of  the  terra,  would  be 
the  rule;  and  that  actual  notice  applies  in  the  present  case. 

There  is  a  conflict  in  the  cases  and  among  writers  as  to 
what  is  actual  notice.  Much  of  the  difference  is  said  to  be 
verbal  only, — more  apparent  than  real.  Certain  propositions, 
however,  are  quite  well  agreed  upon  by  a  majority  of  the 
authorities. 

Notice  does  not  mean  knowledge, — actual  knowledge  is  not 
required.     Mr.  Wade  describes  the  modes  of  proving  actual 


298  ICnapp  v.  Bailey.  [Maine, 

notice  as  of  two  kinds.  One  he  denominates  express  notice, 
and  the  other  implied.  "  Implied,  which  imputes  knowledge 
to  the  party  because  he  is  shown  to  be  conscious  of  having  the 
means  of  knowledge,  though  he  does  not  use  them.  In  other 
words,  where  he  chooses  to  remain  voluntarily  ignorant  of  the 
fact,  or  is  grossly  negligent  in  not  following  up  the  inquiry 
which  the  known  facts  suggest ":  Wade  on  Notice,  2d  ed.,  sec. 
5.  Some  writers  use  the  word  "implied"  as  meaning  construc- 
tive, and  would  regard  what  is  here  described  to  be  implied 
actual  notice  as  constructive  notice  merely.  As  applicable  to 
actual  notice,  such  as  is  required  by  the  sections  of  the  statute 
under  consideration,  we  think  the  classification  of  the  author, 
whom  we  quote,  is  satisfactory. 

The  author  further  explains  the  distinction  by  adding  that 
"  notice  by  implication  diiOfers  from  constructive  notice,  with 
which  it  is  frequently  confounded,  and  which  it  greatly  re- 
sembles, with  respect  to  the  character  of  the  inference  upon 
which  it  rests;  constructive  notice  being  the  creature  of  posi- 
tive law,  or  resting  upon  strictly  legal  inference,  while  implied 
notice  arises  from  inference  of  fact." 

It  amounts  substantially  to  this,  that  actual  notice  may  be 
proved  by  direct  evidence,  or  it  may  be  inferred,  or  implied 
(that  is,  proved),  as  a  fact  from  indirect  evidence,  —  by  cir- 
cumstantial evidence.  A  man  may  have  notice,  or  its  legal 
equivalent.  He  may  be  so  situated  as  to  be  estopped  to  deny 
that  he  had  actual  notice.  We  are  speaking  of  the  statutory 
notice  required  under  the  conveyances  act.  A  higher  grade  of 
evidence  may  be  necessary  to  prove  actual  notice  appertaining 
to  commercial  paper:  Kellogg  v.  Curtis,  69  Me.  212;  31  Am. 
Kep.  273. 

The  same  facts  may  sometimes  be  such  as  to  prove  both  con- 
structive and  actual  notice;  that  is,  a  court  might  infer  con- 
structive notice,  and  a  jury  infer  actual  notice  from  the  facts. 
There  may  be  cases  where  the  facts  show  actual,  when  they  do 
not  warrant  the  inference  of  constructive  notice;  as  where  a 
deed  is  not  regularly  recorded,  and  not  giving  constructive 
notice,  but  a  second  purchaser  sees  it  on  the  records,  thereby 
receiving  actual  notice:  Hastings  v.  Cutler,  24  N.  H.  481. 

Mr.  Pomeroy  (2  Eq.  Jur.,  sec.  596,  note)  summarizes  the 
effect  of  the  American  cases  on  the  point  under  discussion  in 
the  following  words:  "In  a  few  of  the  states  the  courts  have 
interpreted  the  intention  of  the  legislature  as  demanding  that 
the  personal  information  of  the  unrecorded  instrument  should 


March,  1887.]  Knapp  v.  Bailey.  299 

be  proved  by  direct  evidence,  and  as  excluding  all  instances 
of  actual  notice  established  by  circumstantial  evidence.  In 
most  of  the  states,  however,  where  this  statutory  clause  is 
found,  the  courts  have  defined  the  '  actual  notice '  required  by 
the  legislature  as  embracing  all  instances  of  that  species  in 
contradistinction  from  constructive  notice,  —  that  is,  all  kinds 
of  actual  notice,  whether  proved  by  direct  evidence  or  inferred 
as  a  legitimate  conclusion  from  circumstances." 

The  doctrine  of  actual  notice  implied  by  circumstances 
(actual  notice  in  the  second  degree)  necessarily  involves  the 
rule  that  a  purchaser,  before  buying,  should  clear  up  the 
doubts  which  apparently  hang  upon  the  title  by  making  due 
inquiry  and  investigation.  If  a  party  has  knowledge  of  such 
facts  as  would  lead  a  fair  and  prudent  man,  using  ordinary 
caution,  to  make  further  inquiries,  and  he  avoids  the  inquiry, 
he  is  chargeable  with  notice  of  the  facts  which,  by  ordinary 
diligence,  he  would  have  ascertained.  He  has  no  right  to 
shut  his  eyes  against  the  light  before  him.  He  does  wrong 
not  to  heed  the  "  signs  and  signals  "  seen  by  him.  It  may  be 
well  concluded  that  he  is  avoiding  notice  of  that  which  he  in 
reality  believes  or  knows.  Actual  notice  of  facts  which,  to 
the  mind  of  a  prudent  man,  indicate  notice,  is  proof  of  notice: 
3  Washburn  on  Real  Property,  3d  ed.,  335. 

It  must  be  admitted  that  our  present  views  are  not  fully 
supported  by  the  case  of  Spofford  v.  Westouy  29  Me.  140,  a  de- 
cision made  forty  years  ago.  But  the  doctrine  has  grown 
liberally  since  that  day,  and  the  correctness  of  some  things 
pronounced  in  that  opinion  is  virtually  denied  in  subsequent 
cases:  Porter  v.  Sevey,  43  Id.  519;  Hull  v.  Noble,  40  Id.  459; 
Jones  V.  McNarrin,  68  Id.  334;  28  Am.  Rep.  66.  Many  cases 
which  affirm  the  doctrine  contended  for  by  the  complainant, 
as  well  as  many  opposing  cases,  are  cited  by  the  text-writers: 
Wade  on  Notice,  sees.  10,  11,  et  seq.,  and  cases  in  notes;  2 
Pomeroy's  Eq.  Jur.,  sec.  603,  and  notes.  The  decided  pre- 
ponderance of  authority  supports  the  position  that  the  statu- 
tory "  actual  notice  "  is  a  conclusion  of  fact,  capable  of  being 
established  by  all  grades  of  legitimate  evidence. 

As  to  what  would  be  a  suflSciency  of  facts  to  excite  inquiry, 
no  rule  can  very  well  establish;  each  case  depends  upon  its 
own  facts.  There  is  a  great  inconsistency  in  the  cases  upon 
this  point.  But  we  are  satisfied  that  in  the  case  before  us  the 
defendant  must  be  charged  with  notice  that  his  grantor  held 
title  by  what  equity  must  declare  to  be  an  invalid  deed.     Ho 


300  Knapp  v.  Bailey.  [Maine, 


I 


saw  that  the  grantor  was  out  of  possession.  He  could  have 
easily  ascertained  that  he  never  had  possession.  He  knew 
that  others  had  controlled  the  property  in  many  ways  for 
many  years.  He  examined  the  registry,  where  he  discovered 
the  deed  in  question,  and  there  must  have  seen  evidence  of 
other  conveyances  inconsistent  with  its  full  validity.  He 
purchased  the  property  for  forty  dollars,  while  worth,  had  the 
title  been  perfect,  nearer  one  thousand  dollars.  He  took  a 
quitclaim  deed,  and  it  is  held  Ly  some  courts  that  such  an 
instrument  of  conveyance  does  not  make  him  a  bona  fide  pur- 
chaser without  notice:  Baker  v.  Humphrey ^  101  U.  S.  494;  al- 
though in  our  system  it  is  a  circumstance  only  bearing  on  the 
question:  Mansfield  v.  Dyer,  131  Mass.  200.  More  than  all 
else,  perhaps,  the  defendant  made  no  inquiry  of  the  grantor 
whether  he  had  any  real  title  or  not,  asking  no  explanations, 
but  insisting  to  him  that  he  had  no  valuable  title.  It  is  im- 
possible for  us  to  say,  in  the  light  of  these  impressive,  illumi- 
nating proofs,  that  the  defendant  purchased  without  notice. 
He  purchased  on  the  basis  of  a  merely  nominal  title. 

We  would  not  say  that  he  did  not  believe  he  could  legally 
purchase,  encouraged  as  he  was  by  the  doctrine  of  the  earlier 
cases,  now  abrogated;  nor  do  we  impute  more  than  a  want  of 
caution  and  diligence.  Men's  interests  spur  their  judgments 
to  one-sided  conclusions  oftentimes.  The  great  dramatist 
makes  a  character,  reluctant  to  acknowledge  the  situation, 
say,  "I  cannot  dare  to  know  that  which  I  know  ";  while  an- 
other, more  quick-sighted,  because  anxious  to  believe,  exclaims, 
^'  Seems,  madam!  Nay,  it  is.  I  know  not  seems."  One  re- 
jects proof  on  the  clearest  facts;  the  other  accepts  it  on  the 
slightest. 

Judgment  aflBrmed.  

Notice  mat  be  either  Express  or  Implied:  MeMechan  v.  Oriffing,  16 
Am.  Dec.  198. 

Actual  Notice,  What  Facts  Sutficient  to  Constitute:  Lodge  v.  Si- 
monton,  23  Am,  Dec.  36,  and  extended  note  47;  Hoy  v.  Bramhall,  97  Id.  687, 
and  note  695;  Allen  v.  McCalla,  96  Id.  56,  note  64;  Gibson  v.  Winslow,  84  Id. 
65.3,  note  556. 

Implied  or  Constructive  Notice  from  What  Arises:  Note  to  Lodge 
V.  Simonton,  23  Am,  Dec.  47;  Converse  v.  Blumrich,  90  Id.  230,  note  242. 

Actual  Notice  must  be  Shown  by  Clear  Proof:  MeMechan  v.  Oriffing, 
15  Am,  Dec.  198, 

Actual  Notice  of  Trust  must  be  Clearly  Proved:  WUson  v.  McCuU 
lough,  63  Am,  Dec.  347. 

Purchaser  from  One  not  in  Possession  k  chargeable  with  what  uotica 
and  duty:  Smith  v.  Yvk,  89  Am.  Dec.  167,  and  note  171,  172. 


March,  1887.]  Taylor  v.  Cabusle.  301 

Tyler  v.  Carlisle. 

[79  Maine,  210.J 
Monet  Loaned  with  Intent  on  Part  of  Lender  that  it  shall  be  used  for 

gambling  purposes  by  the  borrower  cannot  be  recovered  if  so  used. 
Money  Loaned  for  Gambling  Purposes,  but  not  so  used  by  the  borrower, 

may  be  recovered  of  him  by  the  lender. 

Assumpsit  for  money  loaned  by  plaintiff  to  defendant.  De- 
fendant claimed  that  it  was  a  gambling  debt.  The  instruc- 
tions to  the  jury  suflSciently  appear  from  the  opinion.  Verdict 
for  defendant. 

C.  E.  Littlefield,  for  the  plaintiff. 
/.  E.  Ha-nley,  for  the  defendant. 

By  Court,  Peters,  C.  J.  The  plaintiff  claims  to  recover  a 
sum  of  money  loaned  by  him  while  the  defendant  was  engaged 
in  playing  at  cards.  The  ruling  at  the  trial  was,  that  if  the 
plaintiff  let  the  money  with  an  express  understanding,  inten- 
tion, and  purpose  that  it  was  to  be  used  to  gamble  with,  and 
it  was  so  used,  the  debt  so  created  cannot  be  recovered;  but 
otherwise,  if  the  plaintiff  had  merely  knowledge  that  the 
money  was  to  be  so  used.  Upon  authority  and  principle  the 
ruling  was  correct. 

Any  different  doctrine  would  in  most  instances  be  imprac- 
ticable and  unjust.  It  does  not  follow  that  a  lender  has  a 
guilty  purpose  merely  because  he  knows  or  believes  that  the 
borrower  has.  There  may  be  a  visible  line  between  the 
motives  of  the  two.  If  it  were  not  so,  men  would  have  great 
responsibilities  for  the  motives  and  acts  of  others.  A  person 
may  loan  money  to  his  friend,  —  to  the  man,  and  not  to  his 
purpose.  He  may  at  the  same  time  disapprove  his  purpose. 
He  may  not  be  willing  to  deny  his  friend,  however  much  dis- 
approving his  acts. 

In  order  to  find  the  lender  in  fault,  he  must  himself  have 
an  intention  that  the  money  shall  be  illegally  used.  There 
must  be  a  combination  of  intention  between  lender  and  bor- 
rower, —  a  union  of  purposes.  The  lender  must  in  some  man- 
ner be  a  confederate  or  participator  in  the  borrower's  act,  be 
himself  implicated  in  it.  He  must  loan  his  money  for  the 
express  purpose  of  promoting  the  illegal  design  of  the  borrower; 
not  intend  merely  to  serve  or  accommodate  the  man.  In 
support  of  this  view  many  cases  might  be  adduced.  A  few 
prominent  ones  will  suffice:    Qreen  v.   Collins,  3  Cliff.  494; 


802  Taylor  v.  Carlisle.  [Maine, 

Oaylord  v.  Soragen,  32  Vt.  110;  76  Am.  Dec.  154;  Hill  v. 
Spear,  50  N.  H.  252;  9  Am.  Rep.  205;  Peck  v.  Briggs,  3  Denio, 
107;  Mclntyre  v.  Parks,  3  Met.  207;  Banchor  v.  Mamel^l  Me. 
68;  see  68  Id.  47. 

.Nor  was  the  branch  of  the  ruling  wrong,  that  plaintifif,  even 
though  a  participator,  could  recover  his  money  back,  if  it  had 
not  been  actually  used  for  illegal  purposes.  In  minor  offenses, 
the  locus  penitentias  continues  until  the  money  has  been  actu- 
ally converted  to  the  illegal  use.  The  law  encourages  a  re- 
pudiation of  the  illegal  contract,  even  by  a  guilty  participator, 
as  long  as  it  remains  an  executory  contract,  or  the  illegal  pur- 
pose has  not  been  put  in  operation.  The  lender  can  cease  his 
own  criminal  design,  and  reclaim  his  money.  "The  reason 
is,"  says  Wharton,  "the  plaintiff's  claim  is  not  to  enforce,  but 
to  repudiate,  an  illegal  contract":  Wharton  on  Contracts,  sec. 
354,  and  cases  there  cited.  The  object  of  the  law  is  to  protect 
the  public,  —  not  the  parties.  "  It  best  comports  with  public 
policy  to  arrest  the  illegal  transaction  before  it  is  consum- 
mated," says  the  court  in  Stacy  v.  Foss,  19  Me.  335;  36  Am. 
Dec.  755;  see  White  v.  Franklin  Bank,  22  Pick.  181. 

The  rule  allowing  a  recovery  back  does  not  apply  where  the 
lender  knows  that  some  infamous  crime  is  to  be  committed 
with  the  means  which  he  furnishes.  It  applies  onlv  where 
the  minor  offenses  are  involved. 

Exceptions  overruled. 

To  Invalidate  Loan  fob  Gamblino  Pubposes,  the  lender  must  not  only 
have  known  the  use  intended,  bnt  must  have  been  implicated  aa  a  confeder- 
ate, though  not  necessarily  for  gain:  Watigh  v.  Beck,  60  Am.  Rep.  354;  and 
see  Hardy  v.  Hunt,  70  Am.  Dec.  787,  and  note  791.  In  Morgan  v.  Oroff,  49 
Id.  273,  it  is  held  that  money  so  loaned  cannot  be  recovered  though  not  used. 
In  Lewin  v.  Johnson,  32  Hun,  408,  it  was  held  that  it  is  no  defense  to  an  action 
for  the  purchase  price  of  whisky  that  the  purchaser,  an  innkeeper,  having  no 
license,  intended  to  sell  the  same  by  the  glass,  in  violation  of  the  excise 
law,  and  that  the  seller  knew  that  he  had  no  license,  and  intended  so  to  sell 
the  whisky  purchased.  The  court  said:  "The  question  presented  is,  whether 
the  prior  knowledge  by  a  vendor  of  merchandise  that  the  purchaser  intenda 
to  make  an  unlawful  use  of  the  articles  sold  will  prevent  a  recovery  of  the 
purchase  price.  It  is  now  well  settled  by  the  authorities  in  this  state  that  it 
will  not.  The  precise  question  was  presented  and  decided  in  Tracy  v.  Tal- 
mage,  14  N.  Y.  162  [67  Am.  Dec.  132],  where  the  court  laid  down  this  propo- 
sition: 'That  it  is  no  defense  to  an  action  brought  to  recover  the  price  of 
goods  sold  that  the  vendor  knew  that  they  were  bought  for  an  illegal  pur- 
pose, provided  it  is  not  made  a  part  of  the  contract  that  they  shall  be  used 
for  that  purpose,  and  provided,  also,  that  the  vendor  has  done  nothing  in  aid 
or  furtherance  of  the  unlawful  design.  ....  I  think  it  clear  in  reason,  as 
well  as  upon  authority,  that  in  a  case  like  this,  where  the  sale  is  not  necea- 


March,  1887.]  Tufts  v.  Sylvester.  303 

sarily  per  «c  a  violation  of  law,  unless  the  unlawful  purpose  enters  into  and 
forms  a  part  of  the  contract  of  sale,  the  vendee  cannot  set  up  his  own  illegal 
intent  in  bar  of  an  action  for  the  purchase-money. '  This  statement  of  the  law 
remains  undisturbed  and  unquestioned,  and  has  been  frequently  referred  to 
since  by  the  same  court  with  approval.  In  Aiifiott  v.  Pittston  and  Blmira  Coal 
Co.,  68  N.  Y.  558,  23  Am.  Rep.  190,  the  rule  of  law  on  the  question  before 
us  was  stated  to  be  the  same  as  laid  down  in  Tracy  v.  Talmage,  and  substan- 
tially in  the  same  language,  to  wit:  'A  vendor  of  goods  may  recover  for  their 
price,  notwithstanding  that  he  knows  that  the  vendee  intends  an  improper 
Qse  of  them,  so  long  as  he  does  nothing  to  aid  in  such  improper  use,  or  in  the 
illegal  plan  of  the  purchaser. '  An  English  case,  Hodgson  v.  Temple,  5  Taunt. 
181,  directly  in  point,  may  be  cited,  which  gives  the  law  in  England  on  the 
Bame  question.  In  this  case,  a  buyer  of  spirituous  liquors  was  known  to  be 
carrying  on  a  rectifying  distillery  and  a  liquor  shop  at  the  same  time,  con- 
trary to  law.  The  vendors  of  the  spirits  were  allowed  to  recover  the  price. 
Sir  James  Mansfield  said:  '  The  merely  selling  goods,  knowing  that  the  buyer 
will  make  an  illegal  use  of  them,  is  not  sufiicient  to  deprive  the  vendor  of  his 
just  right  of  payment,  but  to  eflFect  that,  it  is  necessary  that  the  vendor  should 
be  a  sharer  in  the  illegal  transaction. '  In  other  English  cases  the  same  rule 
of  law  is  stated,  some  of  them  being  cited  and  commented  upon  and  ap- 
proved in  Traq/  v.  Talmage,  supra.  The  learned  counsel  for  the  defendant 
cites  us  to  the  cases  of  Hull  v.  Buggies,  56  N.  Y.  424,  and  Amott  v.  Pittston 
and  Elmira  Coal  Co.,  68  Id.  558,  2.3  Am.  Rep.  190,  in  support  of  his  position 
that  the  sellers  are  parttceps  a-iminiawith  the  purchaser  in  his  illegal  purpose 
and  transactions.  On  a  careful  examination  of  these  cases,  it  will  be  observed 
that  ill  each  instance  the  suit  was  to  recover  the  contract  price  of  goods  sold, 
the  court  holding  that  the  contract  in  terms  was  to  do  an  unlawful  and  illegal 
act.  The  court  at  the  same  time  remarking  that  the  cases  were  distinguish- 
able from  Traq/  v.  Talmage,  and  the  law  as  there  stated  approved ":  See 
Brunswick  v.  Valleau,  50  Iowa,  120;  32  Am.  Rep.  119,  and  note  122;  Wallace 
v.  Lark,  12  S.  C.  576;  32  Am.  Rep.  516;  Henderson  v.  Waggoner,  2  Lea,  133; 
31  Am.  Rep.  591;  Feineman  v.  Sachs,  33  Kan.  621;  52  Am.  Rep.  647. 


Tufts  v.  Sylvester. 

[79  Maike,  218.1 

Right  o»  Stoppage  in  Transitu  is  favored  by  the  law. 

I.NSOLVENT  Vkndee  MAY  REFUSE  TO  Takb  POSSESSION  and  thoa  leave  tinim- 
paired  the  right  of  stoppage  in  transitu. 

Good  Stoppage  in  Tran-situ  i.s  Effected  when  an  insolvent  purchaser 
gives  notice  of  his  inability  to  pay  to  the  vendor,  and  leaves  the  goods 
when  they  arrive  in  the  possession  of  some  person  for  the  vendor,  the 
latter  expressly  or  tacitly  assenting. 

Right  or  Stoppage  in  Transitu  may  be  efifected  by  demand  upon  the  car- 
rier and  an  insolvency  messenger,  when  the  vendee  becoming  insolvent 
has  conntermanded  the  order  of  purchase  and  refused  to  receive  the 
goods,  and  his  messenger  in  insolvency,  before  an  assignee  is  appointed, 
has  accepted  the  goods  from  the  carrier  and  paid  the  charges  thereon. 

MnasNOBR  Appointed  ior  Insolvent  Vendee  cannot  receive  goods  so  as 
to  terminate*  tbo  right  of  stoppage  in  transitu.     He  acts  in  a  passive  ca- 


304  Tufts  v.  Sylvester.  [Maine, 

pacity  merely  as  custodian,  until  an  assignee  is  appointed,  and  has  no 
more  authority  ex  officio  than  a  carrier  or  middleman.  Therefore  while 
the  goods  are  in  his  hands  the  right  of  stoppage  may  be  exercised. 

BelchcTf  for  the  plaintiff. 
Whitcomb,  for  the  defendant. 

By  Court,  Peters,  C.  J.  The  plaintiff  sold  a  bill  of  goods 
to  be  shipped  at  Boston  to  the  buyer  at  Farmington  in  this 
state.  The  buyer,  becoming  insolvent  after  the  purchase, 
countermanded  the  order,  but  not  in  season  to  stop  the  goods. 
Before  the  goods  came  he  had  gone  into  insolvency,  and  a 
messenger  had  taken  possession  of  his  property.  An  express 
company,  bringing  the  goods,  tendered  them  to  the  buyer,  who 
refused  to  receive  them,  but  the  messenger  accepted  the  goods 
from  the  carrier,  paying  his  charges  thereon.  After  this,  but 
before  an  assignee  was  appointed,  the  seller  made  a  demand 
upon  both  the  carrier  and  the  messenger,  attempting  to  re- 
claim his  goods.  The  question,  upon  these  facts,  is,  whether 
the  goods  were  seasonably  stopped  in  transitu  to  preserve  the 
plaintiff's  lien  thereon.  We  think  they  were.  The  right  of 
stoppage  in  transitu  is  favored  by  the  law. 

It  is  clear  that  the  goods  did  not  go  into  the  buyer's  posses- 
sion. He  refused  to  receive  them.  He  had  a  moral  and  legal 
right  to  do  so.  Such  an  act  is  commended  by  jurists  and 
judges.  He  in  this  way  makes  reparation  to  a  confiding  ven- 
dor. "  He  may  refuse  to  take  possession,"  says  Mr.  Benjamin, 
"  and  thus  leave  unimpaired  the  right  of  stoppage  in  transitu, 
unless  the  vendor  be  anticipated  in  getting  possession  by  the 
assignees  of  the  buyer":  Benjamin  on  Sales,  sec.  858.  In 
Grout  V.  Hill,  4  Gray,  361,  Shaw,  C.  J.,  says:  "Where  a  pur- 
chaser of  goods  on  credit  finds  that  he  shall  not  be  able  to 
pay  for  them,  and  gives  notice  thereof  to  the  vendor,  and  leaves 
the  goods  in  possession  of  any  person,  when  they  arrive,  for 
the  use  of  the  vendor,  and  the  vendor,  on  such  notice,  expressly 
or  tacitly  assents  to  it,  it  is  a  good  stoppage  in  transitu,  al- 
though the  bankruptcy  of  the  vendee  intervene":  See  same 
case  at  page  369;  1  Parsons  on  Contracts,  *596,  and  cases. 

The  decision  of  the  case,  then,  turns  upon  the  question 
whether  the  messenger  could  accept  the  goods  and  terminate 
the  lien  of  the  vendor.  We  do  not  find  any  authority  for  it. 
A  bankruptcy  messenger  acts  in  a  passive  capacity,  is  in- 
trusted with  no  discretionary  powers,  acts  under  mandate 
of  court,  or  does  certain  things  particularly  preacribed  by  the 


March,  1887.]  Royal  v.  Chandler.  305 

law  which  creates  the  office,  is  mostly  a  keeper  or  defender 
of  property,  a  custodian  until  an  assignee  comes,  and  he 
can  neither  add  to  or  take  from  the  bankrupt's  estate.  He 
is  to  take  possession  of  the  "estate"  of  the  insolvent.  These 
goods  had  not  become  a  part  of  the  estate.  He  was  not  at 
liberty  to  affirm  or  disaffirm  any  act  of  the  insolvent.  Th© 
law  imposes  on  him  no  such  responsibility.  Chancellor  Kent 
says  that  the  transit  is  not  ended  while  the  goods  are  in  the 
hands  of  a  carrier  or  middleman.  A  messenger  has  no  greater 
authority,  ex  officio,  than  a  middleman,  excepting  as  the  insol- 
vent law  expressly  prescribes.  In  Hilliard  on  Bankruptcy, 
101,  the  office  of  a  messenger  is  likened  to  that  of  a  sheriff 
under  a  writ;  he  becomes  merely  the  recipient  of  property. 
The  title  of  the  assignee,  when  appointed,  dates  back  of  the 
appointment  of  a  messenger.  Until  appointment  of  assignee, 
the  bankrupt  himself  is  a  proper  person  to  tender  money  for 
the  redemption  of  land  sold  for  taxes:  Hampton  v.  Rome, 
22  Wall.  263;  see  Stevens  v.  Palmer,  12  Met.  464.  The  case 
cited  by  the  plaintiff,  Sutro  v.  Hoile,  2  Neb.  186,  supports  his 
contention. 

Defendant  defaulted. 


Right  of  Stoppage  in  Transitu,  how  exercised  and  when  terminated. 
House  V.  Judaon,  29  Am.  Dec.  377,  and  note  384-394;  Rucker  v.  Donovan, 
19  Am,  Rep.  84,  note  87;  Allen  y.  Maine  etc  R.  R.  Co.,  post,  p.  310.  and  note. 


KoYAL  V.  Chandler. 

[79  Maine,  265.] 
Dkclaratioks  in  Disparagement  of  Title,  made  by  the  grantor  while 
owner  of  the  land,  are  admiasible  in  evidence  in  favor  of  one  claiming 
adversely  to  the  grantee,  and  cannot  be  impeached  by  later  and  contra- 
dictory statements  made  by  the  grantor,  after  he  parted  with  the  title. 

Swasey  and  Dresser ,  for  the  plaintiff". 

N.  and  J.  A.  Morrill,  for  the  defendant. 

By  Court,  Peters,  C.  J.  This,  a  real  action,  involves  the 
location  of  the  line  between  the  plaintiff^'s  and  defendant's 
premises. 

A  person,  now  deceased,  who  was  once  an  owner  in  plaintiff" 's 

land,  while  an  owner  and  upon  the  land,  made  declarations 

respecting  the  line  favorable  to  the  defendant's  claim.     These 

admissions  in  disparagement  of  hie  own  title  were  properly 
▲m.  »r.  Bw.,  Vou  L-ao 


306  Royal  v.  Chandler.  [Maine, 

proved  at  the  trial  by  the  defendant.  To  detract  from  the 
force  of  this  evidence,  the  plaintiff  was  allowed  to  prove  later 
and  contradictory  statements  made  by  the  same  person  under 
other  circumstances  when  he  was  not  upon  the  land.  The  last 
•declarations  were  not  admitted  as  original,  primary  evidence, 
•but  to  contradict  the  first  declaration.  What  the  former 
owner  said  for  himself  was  admitted  to  impeach  what  he  had 
previously  said  against  himself.  The  last  declarations  were 
not  admissible.  It  was  not  a  legal  contradiction.  It  was  un- 
sworn evidence. 

The  fallacy  of  the  idea  allowing  the  testimony  to  be  received 
consists  in  looking  upon  the  former  owner  as  a  witness  in  the 
cause.  The  first  declarations  were  made  by  him  while  stand- 
ing in  a  condition  the  same  as  if  a  party  to  the  present  suit. 
His  admissions  against  his  own  title  were  of  the  same  quality 
of  evidence  as  if  spoken  by  the  plaintiff  himself.  If  a  man's 
conversation  in  his  favor  be  admitted  against  what  he  has  said 
against  his  interest,  then  he  would  certainly  be  allowed  to 
corroborate  one  statement  by  consistent  statements  made  at 
other  times,  and  no  limit  could  be  fixed  in  respect  to  such 
evidence.  Opening  the  door  so  widely  would  lead  to  mis- 
chievous results. 

The  question  in  the  ruling  does  not  appear  to  have  received 
attention  in  our  own  state.  It  has  been  several  times  consid- 
ered in  Massachusets,  and  is  there  in  each  instance  disposed 
of  unfavorably  to  the  plaintiff  here.  The  case  of  Baxter  v. 
Knowles,  12  Allen,  114,  meets  the  point  exactly,  where  it  is 
said:  "The  declarations  of  the  defendant's  testator,  from 
whom  he  claimed  title,  were  not  made  admissible  in  his  favor 
by  the  fact  that  his  declarations  at  other  times  were  given  in 
evidence  by  the  plaintiff  as  admissions."  Pickenng  v.  Rey- 
nolds, 119  Mass.  Ill,  is  also  precisely  in  point. 

Exceptions  sustained. 

Declarations  bt  Grantor  in  Disfaraoement  ov  Title  while  he  held 
it  are  admissible  against  his  grantee:  Dow  v.  Jewell,  45  Am.  Dec.  371,  and 
note  381;  note  to  HorUm  v.  Smith,  42  Id.  631;  Newlin  v.  Oahome,  67  Id.  269, 
and  note  270.  But  declarations  of  the  grantor,  made  after  the  conveyance, 
are  not  admissible  against  the  grantee:  Beeckman  v.  Montgomery,  80  Id.  229, 
and  note  234;  McDovoell  v.  Ooldamith,  61  Id.  305,  and  note;  contra:  Thomp- 
4on  V.  TTiompson,  68  Id.  638,  but  see  note  648. 


March,  1887  ]      Gilley  v.  Gilley.  307 

GiLLEY  V.  Gilley. 

[79  Maine,  292.] 

Ajtbr  Divorce  a  ViNcaLO  Dkcreed  Wife  for  husband's  "desertion  and 
failure  to  support,"  without  provision  for  alimony  or  custody  of  children, 
the  husband  is  still  liable  for  the  necessary  support  of  the  children  of  the 
marriage  during  their  minority. 

During  his  Lifetime  Father  is  Entitled  to  the  services  and  earnings, 
and  liable  for  the  support  of  his  minor  children,  independent  of  statute 
or  decree;  but  during  such  period  the  wife  is  not  entitled  to  the  services 
of,  nor  is  she  bound  to  support,  such  children. 

Dbcbeb  of  Divorce,  without  Provision  for  Custody  of  Children  of  the 
marriage,  does  not  affect  the  parental  relation  between  the  parties  and 
their  children.  The  husband  is  still  liable  for  their  support  during  mi- 
nority. 

Baker,  Baker,  and  Cornish,  for  the  plaintiff. 

S.  and  D.  Titcomb,  for  the  subsequent  attaching  creditor,  who 
appeared  and  defended,  instead  of  the  defendant. 

By  Court,  Virgin,  J.  Assumpsit  by  the  mother  against  the 
father  for  their  young  children's  necessary  support  furnished 
after  a  divorce  a  vinculo  decreed  to  her  for  his  "  desertion  and 
failure  to  support,"  he  having  been  absent  from  the  state  sev- 
eral years  prior  to  the  decree  and  never  having  returned  or 
furnished  any  support  whatever  during  the  time,  and  no  decree 
for  alimony  or  custody  of  the  children  having  been  made. 

It  is  a  matter  of  common  knowledge  that  a  father  is  entitled 
by  law  to  the  services  and  earnings  of  his  minor  children.  It 
is  equally  well  known  that  this  right  is  founded  upon  the  obli- 
gation which  the  law  imposes  upon  him  to  nurture,  support, 
and  educate  them  during  infancy  and  early  youth,  and  it  con- 
tinues until  their  maturity,  when  the  law  determines  that  they 
are  capable  of  providing  for  themselves:  Benson  v.  Remington, 
2  Mass.  113;  Dawes  v.  Howard,  4  Id.  98;  Nightingale  v.  With- 
ington,  15  Id.  274;  8  Am.  Dec.  101;  State  v.  Smith,  6  Me.  462, 
464;  Dennis  v.  Clark,  2  Gush.  352,  353;  48  Am.  Dec.  671;  Rey- 
nolds v.  Sweetser,  15  Gray,  80;  Garland  v.  Dover,  19  Me.  441; 
Van  Valkinhurgh  v.  Watson,  13  Johns.  480;  7  Am.  Dec.  395; 
Furman  v.  Van  Sise,  56  N.  Y.  435,  439,  445,  446;  15  Am.  Rep. 
441;  2  Kent's  Com.  190  et  seq.;  Schouler  on  Domestic  Rela- 
tions, 321. 

In  Dennis  v.  Clark,  supra,  the  court  said:  "  By  the  common 
law  of  Massachusetts,  and  without  reference  to  any  statute.  ;i 
father,  if  of  sufficient  ability,  is  as  much  bound  to  support  and 
provide  for  his  infant  children,  in  sickness  and  in  health,  as  a 


GiLLEY  V.  GiLLEY.  [Maine, 

husband  is  bound  by  the  same  law,  and  by  the  common  law  of 
England,  to  support  and  provide  for  his  wife.  And  if  a  hus- 
band desert  his  wife,  or  wrongfully  expel  her  from  his  house, 
and  make  no  provision  for  her  support,  one  who  furnishes  her 
with  necessary  supplies  may  compel  the  husband,  by  an  ac- 
tion at  law,  to  pay  for  such  supplies.  And  our  law  is  the 
Bame,  we  have  no  doubt,  in  the  case  of  a  father  who  deserts  or 
wrongfully  discards  his  infant  children."  This  upon  the 
ground  of  agency:  Reynolds  v.  Sweetser,  supra;  Hall  v.  Weir, 
1  Allen,  261;  Camerlin  v.  Palmer  Co.,  10  Id.  539.  But  a  minor, 
who  voluntarily  abandons  his  father's  house,  without  any  fault 
of  the  latter,  carries  with  him  no  credit  on  his  father's  account, 
even  for  necessaries:  Weeks  v.  Merrow,  40  Me.  151;  Angel  \. 
McLellan,  16  Mass.  27;  8  Am.  Dec.  118.  Otherwise,  a  child, 
impatient  of  parental  control,  while  in  his  minority,  would  be 
encouraged  to  resist  the  reasonable  control  of  his  father,  and 
afford  the  latter  little  means  to  secure  his  own  legal  rights  be- 
yond the  exercise  of  physical  restraint:  White  v.  Henry,  24 
Me.  533. 

Moreover,  in  actions  for  seduction,  whereof  loss  of  service  is 
the  technical  foundation,  the  loss  need  not  be  proved,  but  will 
be  presumed  in  favor  of  the  father,  who  has  not  parted  with  his 
right  to  reclaim  his  minor  daughter's  service,  although  she  is 
temporarily  employed  elsewhere:  Emery  v.  Gowen,  4  Me.  33; 
16  Am.  Dec.  233.  "And  this  rule  results  from  the  legal  obli- 
gation imposed  upon  him  to  provide  for  her  support  and  edu- 
cation, which  gives  him  the  right  to  the  profits  of  her  labor": 
Blanchard  v.  Ilsley,  120  Mass.  489;  21  Am.  Rep.  535;  Kennedy 
V.  Shea,  110  Mass.  147;  14  Am.  Rep.  584;  Em,ery  v.  Gowen, 
supra;  Furman  v.  Van  Sise,  56  N.  Y.  435,  444;  15  Am.  Rep. 
441. 

So  also  in  that  large  class  of  cases  wherein  needed  supplies, 
furnished  by  the  town  to  minor  children,  between  whom  and 
their  father,  though  they  lived  apart,  the  parental  and  filial 
relations  still  subsisted,  are  considered  in  law  supplies  indi- 
rectly furnished  the  father, — the  reason  is,  because  he  was 
bound  in  law  to  support  them:  Garland  v.  Dover,  19  Me.  441. 

We  are  aware  that  courts  of  the  highest  respectability,  espe- 
cially those  of  New  Hampshire  and  Vermont,  hold  that  a 
parent  is  under  no  legal  obligation,  independent  of  statutory 
provision,  to  maintain  his  minor  child,  and  that  in  the  absence 
of  any  contract  on  the  part  of  the  father,  he  cannot  be  held, 
except  under  the  pauper  laws  of  those  states,  which  are  sub- 


March,  1887.J  Gilley  v.  Gilley.  309 

stantially  like  our  own:  Kelley  v.  Davis,  49  N.  H.  187;  6  Am. 
Rep.  499;  Gordon  v.  Potter,  17  Vt.  348. 

But  as  before  seen,  the  law  was  settled  otherwise  in  this  state 
before  the  separation,  and  has  been  frequently  recognized  in 
both  states  since;  and  we  deem  it  the  more  consistent  and 
humane  doctrine. 

It  is  also  settled  that  at  least  during  the  life  of  the  father, 
the  mother,  in  the  absence  of  any  statutory  provision,  or  decree 
relating  thereto,  not  being  entitled  to  the  services  of  their  minor 
children,  is  not  bound  by  law  to  support  them:  Whipple  v. 
Dnw,  2  Mass.  415;  Dawes  v.  Howard,  4  Id.  97;  2  Kent's  Com. 
*192;  Weeks  v.  Merrow,  40  Me.  151;  Gray  v.  Durland,  50  Barb. 
100;  Furman  v.  Van  Sise,  supra,  both  opinions;  R.  S.,  c.  59, 
Bee.  24. 

This  leads  to  an  inquiry  into  the  effect  of  the  divorce  a  vin- 
ado  alone,  unaccompanied  by  any  decree  committing  the  cus- 
tody of  the  children  to  the  mother.  For  when  such  a  decree 
is  made,  then  the  father  would  have  no  right,  either  to  take 
them  into  his  custody,  and  support  them,  or  employ  any  one 
else  to  do  so,  without  the  consent  of  the  mother:  Hancock  v. 
Merrick,  10  Gush.  41;  Brow  v.  Brightman,  136  Mass.  187;  Finch 
V.  Finch,  22  Conn.  411.  Although  it  is  held  otherwise  in  eome 
jurisdictions:  Holt  v.  Holt,  42  Ark.  495,  and  other  cases  on 
plaintiff's  brief. 

But  a  decree  of  custody  to  the  mother  is  predicated  of  its 
primarily  belonging  by  right  to  the  father,  and  the  granting  of 
it  implies  that  such  action  on  the  part  of  the  court  is  abso- 
lutely essential  to  imposing  upon  her  the  legal  obligation  of 
supporting  their  minor  children.  So  long  as  the  father  lives, 
the  mother,  in  the  absence  of  any  decree  of  custody  in  her 
behalf,  cannt*.  of  right  claim,  as  against  him,  their  services, 
provided  he  is  .^  suitable  person  to  have  the  care  of  them.  He 
may  on  habeas  corptis  obtain  custody,  as  against  their  mother, 
on  satisfying  the  court  that  he  is  a  fit  custodian:  Commonwealth 
V.  Briggs,  16  Pick.  203. 

It  would  seem  to  follow  that  the  divorce  alone,  while  it  dis- 
solved the  matrimonial  rulation  between  the  parties  thereto, 
did  not  affect  in  any  wise  the  parental  relation  between  them 
and  their  children.  When  the  divorce  was  decreed  in  behalf 
of  his  wife,  the  defendant  thereupon  ceased  to  be  her  husband, 
but  he  still  remained  the  father  of  the  children  which  had 
been  born  to  him  during  his  conjugal  relation  with  the  plaintiff, 
with  all  the  father's  duties  and  legal  obligations  full  upon  him. 


810  Allen  v.  Maine  Central  R.  R.  Co.        [Maine, 

The  cases  which  hold  that  in  case  of  a  decree  for  custody 
the  father  is  not  holden,  impliedly  hold  that  in  the  absence  of 
any  such  decree  he  is  liable:  Brown  v.  Brightman,  supra. 

When  the  bond  of  matrimony  was  dissolved,  these  parties 
became  as  good  as  strangers;  and  the  plaintifif  may  then 
maintain  an  action  against  the  defendant  for  any  cause  of 
action  which  at  least  subsequently  accrued:  Carlton  v.  Carlton, 
72  Me.  115;  39  Am.  Rep.  307;  Webster  v.  Webster,  58  Me.  139; 
4  Am.  Rep.  253. 

We  are  of  opinion,  therefore,  that  this  action  is  maintain- 
able on  the  implied  promise  of  the  defendant  resulting  from 
the  circumstances  and  the  law  applicable  thereto. 

Exceptions  overruled. 

Fatheb  is  Liable  fob  Sufpobt  of  child  after  divorce  granted:  Buck- 
minster  V.  Buckmxnster,  88  Am.  Dec.  652,  and  note  659;  Pretzinger  v.  Pretdn- 
ger,  Sup.  Ct.  Ohio,  Dec.  13,  1887. 

T.TARTT.TTv  OF  Fatheb  FOR  Support  op  Minor  Child:  Note  to  Colebrook 
V.  Stewartstovm,  64  Am.  Dec.  279;  Bennett  v.  Oillette,  74  Id.  779;  Freeman  v. 
Robinson,  20  Id.  399,  and  note.  The  mother  is  under  no  obligation  to  sup- 
port her  minor  child,  and  is  not  entitled  to  his  services:  Fairmount  etc.  R'y 
Co.  V.  StxtOer,  93  Id.  714. 


Allen  v.  Maine   Central   Railroad   Company. 

[79  Maine,  827.J 

Ajnr  Noticb  by  Consignor  to  Carrier  to  stop  the  goods  in  transit  is  suffi- 
cient; no  particular  form  of  notice  is  required. 

Consignor  Exercising  Right  of  Stoppage  in  Transitu  must  act  in  good 
faith  toward  the  carrier,  but  if  after  giving  notice  to  stop  the  goods,  and 
furnishing  reasonable  evidence  of  the  validity  of  his  claim  in  due  time 
by  forwarding  the  invoice  and  his  affidavit  of  ownership,  the  carrier  re- 
fuses to  stop  the  goods,  he  must  respond  in  damages. 

The  notice  spoken  of  in  the  opinion  was  as  follows,  by  tele- 
graph: "  Philadelphia,  March  24,  1884.  Stop  and  return  four 
bales  rags  consigned  to  William  Beatty,  No.  Gray,  Maine, 
marked  Diamond  P.  with  B.  outside.  W.  F.  Allen  &  Co." 
Afterwards  the  notice  was  repeated  by  letter,  as  follows:  "To 
F't  Agt.  Maine  Central  R.  R.,  Gray,  Maine:  Dear  Sir, — We 
telegraphed  you  to  stop  and  return  four  bales  rags  consigned 
to  William  Beatty,  No.  Gray,  Maine,  marked  Diamond  P. 
with  B.  outside,  we  now  write  to  confirm  same,  inclosed  you 
will  find  a  postal  card,  please  make  us  an  early  reply,  and 
oblige  yours  truly,  W.  F.  Allen  &  Co." 


March,  1887.]     Allen  v.  Maine  Central  R.  R.  Co.         311 

Clarence  Hale,  for  the  plaintiff. 
Drummond  and  Drummond,  for  defendants. 

By  Court,  Emery,  J.  The  only  mooted  question  in  thiff 
case  is,  whether  the  plaintiffs  effectually  exercised  against  the 
carrier  their  clear  right  of  stopping  the  goods  in  transitu. 

The  plaintiffs  seasonably  telegraphed  and  wrote  the  proper 
officer  of  the  defendant  company  (the  carrier)  to  stop  and 
return  the  goods.  The  defendant  company  contend  the  notice 
was  insufficient,  because  there  was  no  statement  of  the  nature 
or  basis  of  the  claim  to  have  the  goods  stopped.  While  such 
a  statement  is  probably  usual,  it  does  not  seem  necessary  in 
this  case.  The  carrier  is  presumed  to  know  the  law,  and  by 
such  a  notice  as  was  given  here  is  effectually  apprised  of  a 
claim  adverse  to  the  consignee,  as  well  as  of  a  claim  upon 
himself.  In  Benjamin  on  Sales,  1276,  while  it  is  said  that 
the  usual  mode  is  a  simple'  notice  to  the  carrier,  stating  the 
vendor's  claim,  etc.,  it  is  also  stated  that  "  all  that  is  required 
is  some  act  or  declaration  of  the  vendor  countermanding  the 
delivery."  Brewer,  J.,  in  Ruclcer  v.  Donovan,  13  Kan.  251,  19 
Am.  Rep.  84,  said:  "  A  notice  to  the  carrier  to  stop  the  goods 
is  sufficient.  No  particular  form  of  notice  is  required."  In 
Clemintson  v.  Grand  Trunk  R'y  Co.,  42  U.  C.  Q.  B.  263,  while 
it  was  held  that  the  notice  was  faulty  in  not  identifying  the 
goods,  it  was  said  that  a  specification  of  the  basis  of  the  claim 
was  not  necessary. 

The  defendant  further  contends  that  the  plaintiffs'  omission 
to  afterward  prove  to  the  carrier  their  right  to  stop  the  goods, 
when  requested  by  the  carrier  to  do  so,  has  vacated  their 
claim,  and  released  the  carrier  from  liability.  But  the  car- 
rier is  not  the  tribunal  to  determine  the  rights  of  the  con- 
signor and  consignee.  Neither  of  these  parties  can  be 
required  to  plead  or  make  proof  before  the  carrier.  No' 
man  need  prove  his  case  to  his  adversary.  It  is  sufficient 
if  he  prove  it  to  the  court.  The  carrier  cannot  conclusively 
adjudicate  upon  his  own  obligations  to  either  party.  He  is 
in  the  same  position  as  is  any  man,  against  whom  conflicting 
claims  are  made.  If,  as  is  alleged  here,  the  circumstances 
are  such  that  he  cannot  compel  them  to  interplead,  he  must 
inquire  for  himself,  and  resist  or  yield  at  his  peril. 

It  is  reasonable,  however,  that  the  person  assuming  the 
right  to  stop  goods  in  transit  should  act  in  good  faith  toward 
the  carrier.     lie  should,  if  requested,  furnish  him,  in  due 


312  Allen  v.  Maine  Central  R.  R.  Co.        [Maine, 

time  with  reasonable  evidence  of  the  validity  of  his  claim, 
though  it  may  not  amount  to  proof.  Should  the  consignor 
refuse  such  reasonable  information  as  he  may  possess,  such 
refusal  might  be  construed  as  a  waiver  of  his  peculiar  right, 
and  might  justify  the  carrier,  after  a  reasonable  time,  in  no 
longer  detaining  the  goods  from  the  consignee.  But  there 
was  no  such  refusal  here.  The  plaintiffs  sent  forward  the 
invoice  and  their  affidavit  within  a  reasonable  time. 

The  plaintiffs  have  now  proved  their  right  to  stop  the  goods, 
and  the  defendant  company,  having  denied  that  right  without 
good  reason,  must  respond  in  damages. 

Judgment  for  plaintiffs  for  $176,41,  with  interest  from  the 
date  of  the  writ. 


Right  of  Stoppage  in  Transitu,  how  Exercised.  —  The  vendor's  right 
of  stoppage  continues,  not  only  while  the  goods  are  being  carried  to  the  point 
of  destination,  but  also  until  they  have  actually  or  constructively  passed  into 
the  possession  of  the  vendee.  During  such  time,  the  right  of  stoppage  may 
be  exercised  in  almost  any  manner,  as  no  particular  form  or  mode  seems  to 
have  been  required  in  any  case.  Lord  Hardwicke  said,  in  Snee  v.  Prescot,  1 
Atk.  250,  that  the  vendor  might  get  the  goods  back  again  by  any  means,  so 
long  as  he  did  not  steal  them,  and  he  would  be  free  from  blame.  All  that  is 
required  to  make  the  stoppage  effectual  is  demand  or  notice  on  behalf  of  the 
vendor  in  the  assertion  of  his  rights  as  paramount  to  those  of  the  buyer  or 
vendee:  Siffken  v.  Wray,  6  East,  380.  It  is  not  necessary  for  the  vendor  to 
take  actual  possession  by  a  manual  seizure,  but  it  is  sufficient  if  he  makes  a 
claim  for  them  adversely  to  the  vendee  during  their  transportation.  All  that 
is  required  is  some  act  or  declaration  by  the  vendor  countermanding  the  de- 
livery of  the  goods.  As  was  said  in  Rucker  v.  Donovan,  13  Kan.  255,  19  Am. 
Rep.  84,  actual  seizure  of  the  goods  before  they  come  into  the  hands  of  the 
vendee  is  not  necessary  to  the  exercise  of  the  right  of  stoppage  in  transitu.  A 
demand  of  the  carrier,  or  notice  to  him  to  stop  the  goods,  or  a  claim  and  en- 
deavor to  get  the  possession,  is  sufficient.  See  also  Walker  v.  Woodbridge, 
Cooke's  Bankruptcy  Law,  402.  The  demand  must  be  made  of  the  carrier  or 
middleman,  in  whose  custody  the  goods  are  at  the  time,  and  under  such  cir- 
cumstances that  they  may  prevent  th'eir  delivery  to  the  vendee:  Mottram  v. 
Heyer,  5  Denio,  629.  But  such  demand  must  be  made  of  the  one  in  posses- 
sion of  the  goods:  Mucker  v.  Donovan,  13  Kan.  251;  19  Am.  Rep.  84.  And  a 
demand  for  the  property  on  the  vendee  before  its  actual  delivery  to  him,  and 
while  it  is  in  the  custody  of  custom-house  officers,  is  not  sufficient  to  enable 
the  vendor  to  exercise  the  right  of  stoppage:  Mottram  v.  Heyer,  5  Denio,  629. 

A  valid  demand  for  the  goods  may  be  made  by  the  agent  of  the  vendor 
upon  the  captain  of  the  vessel  carrying  the  goods  before  they  are  unloaded, 
and  if  after  such  demand  the  captain  delivers  them  to  the  assignee  of  the 
vendee,  the  vendor  may  maintain  trover  against  the  assignee:  BohtUngk  v. 
Inglis,  3  East,  380.  Nor  is  it  necessary  to  a  valid  stoppage  in  transitu  that 
the  party  by  whom  it  is  effected  should  have  special  authority  to  that 
effect;  if  he  has  the  authority  of  a  general  agent,  it  is  sufficient.  So  a  mer- 
chant to  whom  the  goods  were  sent,  with  directions  to  forward  them,  may 
effect  the  stoppage  for  the  benefit  of  the  vendor,  provided  the  act  is  affirmed 


March,  1887.]     Allen  v.  Maine  Central  R  R.  Co.  313 

by  the  latter:  Chandler  v.  FuUon,  10  Tex.  2;  60  Am.  Dec.  188;  Newhallv. 
Vargas,  29  Id.  489;  Durgy  etc.  Co.  v.  O'Brien,  123  Mass.  12;  Bell  v.  Mosa,  5 
Whart.  189;  Reynolds  v.  Boston  etc.  R.  R.,  43  N.  H.  579.  But  it  seems,  if 
the  ratification  of  the  agent's  act  comes  after  the  goods  have  reached  the  ven- 
«lee  or  his  assignee,  it  comes  too  late,  and  the  right  of  stoppage  is  lost:  Bird 
V.  Brown,  4  Ex.  786;  Davis  v.  McWJdrter,  40  U.  C.  Q.  B.  598.  A  mere 
claim  for  the  goods,  though  no  actual  possession  be  taken,  is  a  sufficient  exer- 
cise of  the  right  of  stoppage:  Mills  v.  Ball,  2  Bos.  &  P.  457,  cited  approv- 
ingly in  Atkins  v.  Colby,  20  N.  H.  156.  Of  course,  if  the  vendor  takes  actual 
possession  of  the  goods  during  the  transit,  this  is  an  effectual  exercise  of  the' 
right  of  stoppage:  Stanton  v.  Eager,  16  Pick.  467.  So  if  the  goods,  after 
being  consigned,  are  lodged  in  the  custom-house,  because  the  duties  on  them 
are  not  paid,  the  vendor  may  exercise  the  right  at  any  time  before  they  are 
sold,  and  if  the  claim  is  seasonably  made,  and  the  goods  are  afterwards  sold 
for  duty,  he  is  entitled  to  the  proceeds  of  the  sale:  Northey  v.  Field,  2  Esp. 
613. 

The  usual  mode  of  exercising  the  right  of  stoppage  in  tranatu  is  by  simple 
notice  to  the  carrier,  in  which  the  vendor's  right  is  stated,  forbidding  delivery 
to  the  vendee,  or  requiring  that  the  goods  be  held  subject  to  the  vendor's 
orders.  In  Jones  v.  Earl,  37  Cal.  630,  it  is  said  that  no  express  demand  on 
the  carrier  for  the  goods  is  necessary  in  order  to  charge  him;  all  that  is  re- 
quired  is,  that  he  be  clearly  informed  that  it  is  the  desire  of  the  vendor  to 
retake  the  goods,  and  notice  to  this  effect  is  sufficient.  To  the  same  effect, 
Reynolds  v.  Boston  etc.  R.  R.,  43  N.  H.  580;  Bell  v.  Moss,  5  Whart.  189; 
Rucker  v.  Donovan,  13  Kan.  251;  19  Am,  Rep.  84;  BlooniingdcUe  etc.  v.  Mem' 
phis  etc.  R.  R.  Co.,  6  Lea,  616.  In  such  case,  notice  to  the  agent  of  the  car- 
rier, who  is  in  possession  of  the  goods  in  the  regular  course  of  his  agency,  is 
notice  to  the  carrier:  Jojies  v.  Earl,  supra.  The  notice,  however,  must  be 
given  to  the  one  in  possession  of  the  goods:  Rucker  v.  Donovan,  13  Kan.  251; 
19  Am.  Rep.  84.  So  that  notice  to  the  carrier,  or  to  any  one  having  charge  of 
the  goods  during  their  transit,  is  sufficient,  and  does  not  prevent  retaking  the 
goods  afterwards  on  account  of  a  claim  interposed  by  the  vendee:  Newhall  v. 
Vargas,  29  Am.  Dec.  489.  The  notice,  to  be  effectual,  must  be  given  to  the 
party  having  immediate  possession  of  the  goods,  or  to  the  principal  whose 
servant  has  the  custody,  at  such  time,  and  under  such  circumstances,  that  he 
may,  by  the  exercise  of  reasonable  diligence,  communicate  it  to  his  servant 
in  time  to  prevent  delivery  to  the  vendee  or  his  assignee:  Whitehead  v.  Ben- 
bow,  9  Mees.  &  W.  517.  It  has  been  held,  however,  that  notice  to  the  ship- 
owner imposes  no  duty  on  him  to  communicate  it  to  the  master  of  the  ship, 
and  that  it  is  not  effectual  until  communicated  to  the  master:  Ex  parte  Folk, 
14  L.  R.  Ch.  446;  affirmed,  7  L.  R.  App.  C,  573.  Notice  to  the  carrier  not 
to  deliver  the  goods  to  the  vendue  is  a  sufficient  exercise  of  tlie  right  of  stop- 
page; and  if  the  goods,  by  mistake  of  the  carrier,  are  subsequently  delivered 
to  the  vendee,  the  carrier  is  liable  for  their  value:  Litt  v.  Cowley,  7  Taunt. 
169;  2  Marsh.  457.  The  notice  must  be  specific  enough  to  identify  the  goods, 
and  must  clearly  state  the  object  for  which  it  is  given,  namely,  a  desire  to 
•top  the  goodu;  if,  in  either  event,  it  fails,  it  is  insufficient:  Clementson  v. 
Orand  Trunk  R.  R.  Co.,  42  U.  C.  Q.  B.  263;  Phelps,  Stokes,  d-  Co.  v.  Comber, 
L.  R.  26  Ch.  755;  29  Id.  813. 

The  vendor  may  effectually  exercise  the  right  of  stoppage  in  tratisitu  by 
giving  notice  to  the  ship-owner,  when  the  latter  has  retained  the  bills  of 
lading  for  unpaid  freight:  Ex  parte  Watson,  L.  R.  5  Ch.  35;  21  Moak's  Eng. 
Rep.  764.     And  the  vendor's  notice  to  stop  the  goods  makes  it  the  duty  of 


314  Seele  r.  Inhabitants  of  Deering.         [Maine, 

the  master  of  the  vessel  to  refuse  delivery  to  vendee  to  whom  the  bill  of 
lading  has  been  indorsed,  and  such  notice  is  sufficient  without  representing 
that  the  bill  of  lading  has  not  been  assigned  to  the  vendee.  Under  such 
notice,  the  vendor  may  demand  redelivery  to  himself,  and  the  carrier  can- 
not retain  the  goods  for  delivery  to  the  true  owner  after  conflicting  claimji 
have  been  settled:  The  Tujress,  32  L.  J.  Adm.  97.  The  right  of  stoppage 
may  be  exercised  by  notice  to  the  carrier  after  the  goods  have  been  stored  in 
the  railroad  warehouse,  and  are  there  awaiting  the  payment  of  charges  and 
delivery:  Symns  v,  SchoUen,  35  Kan.  310.  So  if  the  goods  are  in  the  cus- 
toms warehouse,  and  the  vendor  gives  notice  to  the  carrier  to  stop  them, 
after  which  the  agent  of  the  carrier  gives  an  order  for  delivery  to  another 
upon  payment  of  charges,  the  notice  to  the  carrier  is  sufficient  to  stop 
them,  though  it  might  be  advisable  to  also  give  notice  to  the  customs  officer. 
And  if  the  goods  are  taken  by  the  person  holding  the  order,  the  company 
is  liable  for  the  delivery:  Ascluer  v.  Grand  Trunk  R.  R.  Co.,  36  U.  C.  Q.  B. 
609. 

Where  the  vendee  becomes  insolvent  during  the  transit  of  the  goods,  or 
after  it  has  terminated,  but  before  the  goods  have  vested  in  his  assignee,  and 
the  vendee  has  either  rescinded  the  order  of  purchase  or  refused  to  accept 
the  goods,  the  vendor  may  exercise  the  right  of  stoppage  in  transitu  by  mak- 
ing demand,  or  giving  notice  to  that  eflfect  to  the  middleman,  carrier,  or  cus- 
todian of  the  goods:  Note  to  Hause  v.  Judson,  29  Am.  Dec.  392;  Tvfls  v. 
Sylvester,  ante,  p.  303;  Clarh  v.  Lynch,  4  Daly,  83;  Clark  v.  Bartlett,  50  Wis. 
543,  547;  see  also  note  to  Sangslaffy.  Stix,  60  Am.  Rep.  51-57. 


Seele  v.  Inhabitants  of  Deering. 

[7i  Maine,  343.J 

Town  is  not  Liable  for  Nuisance  when  the  acts  complained  of  are  not 
within  the  scope  of  its  corporate  powers,  nor  performed  by  its  officers  in 
the  execution  of  any  corporate  duty  imposed  upon  them. 

Town  Independent  of  Statute  has  No  Corporate  Power  to  dig  ditches 
across  another's  land.  Such  act  is  uUra  vii-es,  and  no  liability  is  created 
on  the  part  of  the  town  when  such  acts  are  authorized  and  directed  by  a 
majority  of  the  corporate  officers. 

Perry  and  MeaJier,  for  the  plaintifiF. 

N.  and  H.  B.  Cleaves^  and  Drummond  and  Drummond,  for 
the  defendants. 

By  Court,  Virgin,  J.  Assuming,  —  what  the  demurrer  ad- 
mits,—  the  allegations  in  the  declaration  to  be  true,  it  is 
obvious  that  a  most  unmitigated  nuisance  has  been  created  on 
and  about  the  premises  of  the  plaintiff  to  his  great  injury;  and 
were  the  defendant  an  incorporated  city,  its  alleged  acts 
would  constitute  prima  facie  such  a  cause  of  action  as  might 
render  it  liable  in  the  absence  of  any  justification :  Cumberland 
ttc.  Co.  V.  Portland,  62  Me.  505.     But  we  have  looked  in  vain 


April,  1887.]     Seele  v.  Inhabitants  of  Deerinq.  315 

through  both  counts  for  any  allegations  which,  in  our  view, 
render  the  defendant  town  liable  for  the  alleged  acts  which 
have  resulted  so  injuriously  to  the  plaintiff's  property. 

The  authority  and  liability  of  our  quasi  public  corporations 
known  as  towns,  as  distinguished  from  municipal  corporations 
incorporated  under  special  charters,  are  generally  only  such  as 
are  defined  and  prescribed  by  general  statutory  provisions. 
Some  things  they  may  lawfully  do,  and  others  they  have  no 
authority  for  doing.  To  create  a  liability  on  the  part  of  a 
town  not  connected  with  its  private  advantage,  the  act  com- 
plained of  must  be  within  the  scope  of  its  corporate  powers  as 
defined  by  the  statute.  If  the  particular  act  relied  on  as  the 
cause  of  action  be  wholly  outside  of  the  general  powers  con- 
ferred on  towns,  they  can  in  no  event  be  liable  therefor,  whether 
the  performance  of  the  act  was  expressly  directed  by  a  major- 
ity vote,  or  was  subsequently  ratified:  Morrison  v.  City  of  Law- 
rence, 98  Mass.  219. 

So  a  town  is  not  liable  for  the  unauthorized  and  illegal  acts 
of  its  oflQcers  even  when  acting  within  the  scope  of  their  du- 
ties: Brown  v.  Vinalhaven,  65  Me.  402;  20  Am.  Rep.  709;  Small 
v.  Danville,  51  Me.  359;  but  it  may  become  so  when  the  acts 
complained  of  were  illegal  but  done  under  its  direct  authority 
previously  conferred  or  subsequently  ratified:  Woodcock  v. 
Calais,  66  Id.  234,  and  cases  there  cited. 

The  difficulty  with  the  counts  is,  that  the  allegations  therein 
do  not  bring  the  acts  complained  of  within  the  scope  of  the 
corporate  powers  of  the  town,  or  aver  that  they  were  performed 
by  its  officers  in  the  execution  of  any  corporate  duty  imposed 
by  law  upon  the  town :  Anthony  v.  Adams,  1  Met.  284.  There 
is  no  intimation  that  the  acts  were  done  in  connection  with 
the  making  or  repairing  of  any  highway  or  townway  which 
the  law  imposed  upon  the  town,  or  in  relation  to  any  drain  or 
sewer  laid  out  or  attempted  to  be  laid  out  by  the  town  authori- 
ties under  the  Revised  Statutes,  chapter  16,  for  which  it  might 
under  certain  circumstances  become  liable:  Estes  v.  China,  56 
Me.  407;  Franklin  Wharf  Co.  v.  Portland,  67  Id.  46;  24  Am. 
Rep.  1;  or  in  emptying  a  common  sewer  upon  the  property  of 
the  plaintiff  outside  of  the  public  works,  as  in  PropWs  L.  d'  C. 
V.  Lowell,  7  Gray,  223.  But  the  principal  allegations  are,  that 
the  defendants  "  wrongfully  opened  and  dug  a  ditch  across 
the  main  road  ....  in  Deering,  and  into  an  artificial  ditch 
in  the  rear  of  a  tripe  and  bone-boiling  establishment  from  which 
a  cesspool  of  stagnant  and  filthy  water  was  then  and  thero 


316  Briggs  v.  Lewiston  etc.  R.  E.  Co.  [Maine, 

collected,  and  then  and  there  continued  said  ditch  across  the 
land  of  Samuel  Jordan  two  hundred  feet  in  the  direction  of 
the  plaintiflF's  land.  ai.d  out  of  the  natural  course  of  said  water, 
and  onto  the  plaintiff's  land,  and  along  through  the  same  into 
his  mill  pond. ' 

It  is  quite  evident  that  a  town,  independent  of  any  statutory 
authority',  has  no  corporate  power  to  dig  ditches  across  anoth- 
er's land.  Such  an  act  is  ultra  vires;  and  any  express  majority 
vote,  based  on  a  proper  article  in  a  warrant  calling  a  meeting 
of  the  defendants  directing  such  acts,  would  create  no  liability 
on  the  part  of  the  town:  Cushing  v.  Bedford,  125  Mass.  526; 
Lemon  v.  Newton,  134  Id.  476. 

Whether  or  not  the  declaration  can  be  amended  bo  as  to 
make  the  town  liable,  we  cannot  in  the  absence  of  a  knowledge 
of  the  facts  now  determine. 

Exceptions  overruled. 

Walton,  J.,  did  not  sit. 

Liability  of  Mukicifal  Cobpobation  for  maintaiiung  or  abating  a  nui- 
sance which  is  uUra  vires:  Cavanagh  v.  Boston,  62  Am.  Bep.  716. 


Briggs  v.  Lewiston  and  Auburn  Horse  E.  E.  Co. 

179  Maink,  868.] 

When  Land  has  been  Lawfully  Taken  fob  Stbbet,  legislative  and 
municipal  authority  may  authorize  the  construction  and  operation  of  a 
street  railway  upon  it,  no  matter  what  the  motor,  withoat  providing  for 
additional  compensation  to  the  land-owner. 

Savage  and  Oakes,  for  the  plaintiff. 

Dana  and  Estey,  for  the  defendant. 

By  Court,  Emery,  J.  A  strip  of  the  plaintiff's  land  in  Au- 
burn had  been  lawfully  taken  by  public  authority  for  a  public 
highway,  and  just  compensation  had  been  made  to  the  owner 
therefor.  The  defendant  company  had  subsequently  con- 
structed a  street  railroad  (commonly  called  a  "horse  rail- 
road ")  in  this  highway  and  over  the  strip  of  land  thus  taken 
from  the  plaintiff's  land.  Early  in  1885,  the  company  low- 
ered the  grade  of  their  rails  on  this  strip,  whereupon  the 
plaintiff  brought  this  action,  alleging  said  acts  of  the  defend- 
ant company  to  be  a  trespass  on  her  land. 

All  these  acts  of  the  defendant  were  within  the  limits  of  the 


April,  1887.]     Brigg3  v.  Lewiston  etc.  R.  R.  Co.  317 

highway,  and  were  done  under  express  license  from  the  city 
council  of  Auburn,  and  from  the  legislature.  They  would  not 
therefore  constitute  any  trespass  on  the  plaintiff's  land,  if  such 
license  conferred  lawful  authority.  The  plaintiff  contends, 
however,  that  the  license  invoked  in  this  case  has  no  validity 
and  confers  no  authority,  because  it  undertakes  to  make  a  new 
and  different  use  of  her  land,  without  providing  a  just  com- 
pensation therefor. 

We  do  not  think  the  construction  and  operation  of  a  street 
railroad  in  a  street  is  a  new  and  different  use  of  the  land  from 
its  use  as  a  highway.  The  modes  of  using  a  highway  strictly 
as  a  highway  are  almost  innumerable,  and  they  vary  and 
widen  with  the  progress  of  the  community.  When  a  highway 
is  first  established  in  some  unfrequented  locality,  it  may  exist 
for  a  time  as  a  rude  road,  with  a  narrow  track,  and  only  occa- 
sionally used.  With  the  growth  of  population  and  business, 
and  the  transformation  of  the  lonely  neighborhood  into  a 
thriving,  increasing  city,  the  highway  may  also  go  through 
the  transformations  of  being  turnpiked,  planked,  macadam- 
ized, and  paved  for  its  entire  width.  From  bearing  an  occa- 
sional rude  cart,  it  may  come  to  sustain  an  endless  succession 
of  wagons,  drays,  coaches,  omnibuses,  and  other  vehicles  of 
travel  and  traffic.  There  is  a  continual  march  of  improve- 
ment in  streets  and  in  vehicles.  It  cannot  be  that  the  land- 
owner must  be  compensated  anew  at  each  new  improvement 
in  street,  or  vehicle,  or  with  every  increase  of  traffic.  All  the 
land  originally  taken  was  taken  for  a  highway,  and  for  all 
time,  if  needed,  and  the  compensation  was  estimated  on  that 
basis.  The  taking  and  the  payment  were  once  for  all.  The 
public,  at  the  first  taking,  acquired  an  untrammeled  right  of 
way  over  every  part  of  the  land  taken,  with  full  right  to  do 
all  things  upon  the  land  to  facilitate  its  use  as  a  highway,  and 
make  it  sufficient  at  any  time  for  the  increasing  need  of  the 
public  for  a  highway.  There  is  in  such  cases  no  stipulation 
limiting  the  public  to  any  particular  kind  of  road  or  vehicle. 

The  laying  down  rails  in  the  street,  and  the  running  street- 
cars over  them  for  the  accommodation  of  persons  desiring  to 
travel  on  the  street,  is  only  a  later  mode  of  using  the  land  as  a 
way,  using  it  for  the  very  purpose  for  which  it  was  originally 
taken.  It  may  be  a  change  in  the  mode,  but  it  is  not  a  change 
In  the  use.  The  land  is  still  used  for  a  highway.  The  weight 
of  authority  is  so  manifestly  in  favor  of  this  proposition  it  is 
unnecessary  to  cite  particular  decisions. 


818  Briggs  v.  Lewiston  etc.  R.  R.  Co.  [Maine, 

Our  attention  is  called  to  the  fact  that  this  defendant  com- 
pany is  authorized  to  use  steam  as  a  motor  on  this  same  rail- 
road, and  we  are  cited  to  decisions  of  courts  holding  that  the 
ordinary  steam  railroad  companies  must  make  additional  com- 
pensation to  land-owners  before  taking  a  street  for  their  rail- 
roads. The  argument  is,  that  however  it  may  be  as  to  horse 
railroads,  steam  railroads  must  make  compensation. 

We  do  not  think  the  motor  is  the  criterion.  It  is  rather  the 
use  of  the  street.  If  the  railroad  company  exclusively  occupy 
the  land,  —  shut  off  the  street  from  it,  deprive  it  of  its  char- 
acter of  bearing  the  easement  of  a  street,  —  use  it,  not  for 
street  traflSc,  but  for  what  is  known  as  railway  trafl&c,  the 
company  may  perhaps  be  said  to  make  a  new  and  different 
use  of  the  land.  But  we  have  no  occasion  now  to  express  any 
opinion  on  that  question.  This  defendant  company  is  using 
the  land  as  a  street.  Its  railroad  is  a  street  railroad.  Its 
cars  are  used  by  those  who  wish  to  pass  from  place  to  place 
on  the  street.  A  change  in  the  motor  is  not  a  change  in  the 
use. 

If  public  authority  can  lawfully  authorize  the  construction 
and  operation  of  a  street  railway  in  a  public  street,  without 
providing  for  additional  compensation  to  the  land-owner  (as 
we  think  it  can),  it  can  also  lawfully  authorize  a  change  of 
grade  for  that  purpose,  without  committing  a  trespass  upon  the 
land-owner. 

The  oflScers  of  municipalities,  charged  with  the  duty  of  mak- 
ing the  streets  safe  and  convenient  for  the  use  of  an  increasing 
traffic,  have  large  authority,  and  wide  discretion  in  all  matters 
of  construction  and  improvement,  including  grades.  It  has 
been  held  that  the  lowering  the  grade  of  a  street  by  a  person 
acting  under  municipal  authority  and  in  good  faith,  without 
wantonness,  is  not  a  trespass  against  the  land-owner:  Hovey 
v.  Mayo,  43  Me.  332.  In  this  case  the  lowering  of  the  grade 
was  done  under  the  authority  of  the  city  council  and  of  the 
commissioner  of  streets.  There  is  no  suggestion  of  want  of 
good  faith. 

We  think  the  plaintiff  is  confined  to  the  remedy  provided 
by  statute,  section  16  of  city  charter  of  Auburn,  and  section 
68,  of  chapter  18,  of  the  Revised  Statutes.  These  statute  pro- 
visions will  afford  a  remedy,  if  she  be  entitled  to  any  compen- 
.sation.     She  cannot  maintain  this  action  of  trespass. 

Judgment  for  defendant. 


April,  1887.]     Casco  National  Bank  v.  Shaw.  319 

Latixo  of  Horse  Railroad  Track  on  street  is  not  new  servitude,  so  as 
to  entitle  owner  along  the  street  to  additional  compensation:  Note  to  Imlay 
V.  Utiion  Branch  R.  R.  Co.,  08  Am.  Dec.  398;  Attoniey-Oeneralv.  Metropolitan 
R.  R.  Co.,  28  Am.  Rep.  264,  and  note 267;  Hinchman  v.  Paterson  Horse  R.  R. 
Co.,  86  Am.  Dec.  252,  and  note  238;  Hiss  v.  Baltimore  etc.  R'y  Co.,  36  Am, 
Rep.  371;  Eichels  v.  Evansville  etc.  R'y  Co.,  41  Id.  561;  CarU  v.  Stilltoater  etc 
Ky  Co.,  41  Id.  290 


Casco  National  Bank  v.  Shaw. 

{79  Maine,  876.] 

Notice  ov  Dishonor  of  Note  is  sufficient  if  addressed  to  the  indorsers  at 
their  former  place  of  business,  where  their  affairs  were  being  settled  by 
a  trustee  to  whom  they  had  assigned  for  the  benefit  of  their  creditors. 

Notice  of  Dishonor  of  Note  is  Properly  Mailed  if  dropped  into  a 
street  letter-box  put  up  by  the  post-office  department.  It  is  as  troly 
mailed  as  if  deposited  in  a  letter-box  within  the  post-office  building. 

In  Action  bt  Holder  against  Indorser  of  Note,  the  latter  is  not  en- 
titled to  the  benefit  of  payments  made  by  a  third  party  under  an  agree- 
ment with  the  holder  that  the  note  should  be  assigned  to  him.  The 
money  so  paid  is  not  a  payment  on  the  note. 

Request  by  Defendant  to  Continue  Action  until  the  termination  of  in- 
solvency proceedings  against  him  is  discretionary  with  the  court,  and 
cannot  be  claimed  as  matter  of  right.  It  will  only  be  granted  when 
justice  will  thereby  be  promoted. 

William  L.  Putman,  for  the  plaintiff. 

G.  W.  Morse,  and  N.  and  H.  B.  Cleaves,  for  the  defendants. 

By  Court,  Walton,  J.  We  think  the  defendants  had  due 
notice  of  the  dishonor  of  the  notes  declared  on.  Notices  were 
addressed  to  them  at  their  former  place  of  business,  where 
their  affairs  were  being  settled  up  by  a  trustee,  to  whom  they 
had  made  an  assignment  for  the  benefit  of  their  creditors,  and 
we  have  no  doubt  that  the  notices  were  received  by  the  trus- 
tee. Notices  so  sent  and  received  are  sufficient:  Bank  of 
America  v.  Shaw,  142  Mass.  290;  2  N.  E.  Rep.  572.  In  the 
case  cited,  the  notice  was  to  the  same  firm,  and  under  sub- 
Btantially  the  same  circumstances  as  in  the  cases  now  before 
us,  and  the  notice  was  held  good,  "  because  it  was  sent  to 
what  had  been  the  place  of  business  of  the  firm,  where  its 
affairs  were  actually  in  process  of  settlement  under  the  trust." 

It  is  objected  that  the  notices  were  not  properly  mailed,  be- 
cause they  were  dropped  into  a  street  letter-box.  We  think 
this  is  not  a  valid  objection.  Street  letter-boxes  are  author- 
ized by  an  act  of  Congress  (U.  S.  R.  S.,  sec.  3868),  and  are  as 
completely  and  as  exclusively  under  the  care  and  control  of 


820  Casco  National  Bank  v.  Shaw.  [Maine, 

the  post-office  department  as  boxes  provided  for  the  reception 
of  letters  within  the  post-office  buildings  themselves;  and  we 
think  a  letter  deposited  in  a  street  letter-box  which  has  been 
put  up  by  the  post-office  department  is  as  truly  mailed,  within 
the  meaning  of  the  law,  as  if  it  were  deposited  in  a  letter-box 
within  the  post-office  building  itself.  It  has  been  held  that  a 
delivery  to  a  letter-carrier  is  sufficient:  Pearce  v.  Langjit,  101 
Pa.  St.  507;  47  Am.  Rep.  737. 

Payments  are  claimed.  Since  the  commencement  of  these 
actions,  the  bank  has  received  $44,398.17  from  F.  A.  Wyman 
which  the  defendants  claim  should  be  credited  to  them.  The 
credit  cannot  be  allowed.  The  money  was  not  delivered  or 
received  as  payments  on  the  notes  in  suit.  It  was  received 
on  a  contract  by  which  the  bank  agreed  to  assign  to  Wyman 
the  notes  in  suit,  and  the  actions  thereon,  "with  all  benefit 
of  attachments,  if  any,  made  in  said  suits,"  and  this  con- 
tract has  been  assigned  by  Wyman  to  a  third  party.  It  is 
clear,  therefore,  that  the  defendants  are  not  entitled  to  the 
benefit  of  these  payments.  So  far  as  appears,  they  have 
neither  a  legal  nor  an  equitable  right  to  the  benefit  of  them. 

Payments  to  the  amount  of  $11,720.52  have  been  made  by 
C.  W.  Clement  and  C.  H.  Ward  on  such  of  the  notes  in  suit 
as  are  signed  by  them,  which  will  of  course  be  allowed,  and 
the  defendants  will  have  the  benefit  of  them. 

The  court  is  asked  to  continue  these  actions  to  await  the 
result  of  insolvency  proceedings  which  they  aver  are  pending 
against  them  in  this  state.  We  are  not  satisfied  that  this 
request  ought  to  be  granted.  The  petitione  have  been  pend- 
ing since  November,  1883,  and  yet  no  adjudication  has  been 
had  upon  them;  and  we  doubt  if  there  is  any  intention  to 
prosecute  them  further;  for  the  petitioning  creditors  appear 
to  have  been  settled  with  and  their  claims  assigned  to  the  de- 
fendants' trustee,  Wyman.  Continuances  for  such  a  cause 
are  discretionary  with  the  court;  they  cannot  be  claimed  as  a 
matter  of  right;  and  they  will  only  be  granted  when  the  court 
is  satisfied  that  justice  will  be  thereby  promoted:  Schwartz  v. 
Drinkwater,  70  Me.  409.  We  are  not  satisfied  that  justice 
would  be  thereby  promoted  in  these  actions.  The  request  is 
therefore  denied. 

Four  actions  between  the  same  parties  have  been  submitted 
to  the  law  court  upon  one  report  of  evidence;  and  the  parties 
have  agreed  that  the  court  shall  render  such  judgment  in  each 
•ase  as  the  legal  rights  of  the  parties  may  require.     It  is  the 


June,  1887.]    Wobmell  v.  Maine  Central  R.  R.  Co.       321 

opinion  of  the  court  that  the  plaintifiF  is  entitled  to  judgment 
In  each  of  the  four  actions,  and  such  judgments  will  accord- 
ingly be  entered. 

NoncB  OF  Dishonor  Lept  at  Indorsee's  former  place  of  business  is 
8ti£5cient  when:  Lewiston  Falls  Bank  v.  Leonard,  69  Am.  Dec.  49. 

Notice  of  DiSHo:soa  by  Mail,  Sufficiency  of:  Wahoorth  v.  Leaver,  73i 
Am.  Dec.  332,  and  note  334;   Walters  v.  Brown,  74  Id.  556. 

Motion  for  Continuance  is  Matter  of  Discretion  with  the  courtr 
Shaituck  V.  Myers,  74  Am.  Dec.  236,  and  note  245;  Hyde  v.  State,  67  Id.  640. 


WoEMBLL  V.  Maine  Centeal  Railroad  Company. 

[79  MAIN!,  897.J 

To  Entitle  Servant  to  Recover  for  Injury,  he  mnst  prove  negligence 
or  omission  of  duty  on  the  part  of  the  master,  occasioning  the  injury. 
If  it  was  caused  by  his  own  neglect  and  want  of  ordinary  care,  or  was 
the  result  of  accident,  he  cannot  recover.  In  such  cases,  negligence  is 
never  presumed  against  the  master. 

Relation  of  Master  and  Servant,  without  neglect  of  duty,  does  not  im- 
pose on  the  master  a  guaranty  of  the  servant's  safety,  but  that  a  ser< 
vant  of  sufiBcient  age  and  intelligence  to  understand  the  nature  of  the 
risks  to  which  he  is  exposed  undertakes,  for  compensation,  the  natural, 
ordinary,  and  apparent  risks  and  perils  incident  to  the  employment. 

Relation  of  Master  and  Servant  requires  each  to  exercise  ordinary  and 
reasonable  care;  the  master  to  use  such  care  in  providing  and  main- 
taining suitable  means  and  instrumentalities  with  which  to  conduct  his 
business  that  the  servant  exercising  due  care  may  he  enabled  to  perform 
his  duty  without  exposure  to  dangers  not  falling  within  the  obvious 
scope  of  his  employment. 

Master  is  not  Bound  to  Furnish  Safest  Maohinkry,  instrumentalities, 
and  appliances  in  carrying  on  his  business;  nor  need  he  provide  the  best 
methods  for  their  operation  in  order  to  insure  responsibility  from  their 
use.  But  the  servant,  knowing  the  circumstances,  must  judge  whether 
he  will  enter  his  service,  or,  having  entered,  will  remain. 

Master  must  Notify  Servant  of  Special  Risks  in  the  employment  of 
which  the  latter  is  not  cognizant,  or  which  are  not  patent;  and  on  fail* 
ore  of  such  notice,  the  servant  exercising  due  care  and  receiving  injury 
it  entitled  to  recover,  when  the  master  knew,  or  ought  to  have  known, 
of  such  riskB. 

Skbvant  must  Pbote  by  Evidence  having  legal  weight  that  he  was  exer- 
cising due  c&re  at  the  time  the  injury  was  received,  to  entitle  him  to 
recover. 

Where  Servant  Receives  Injury,  Question  of  Due  Care  on  his  part  is 
ordinarily  for  the  jury;  but  sometimes  it  becomes  one  of  law,  whether, 
from  the  facts  and  circumstances,  the  jury  can  properly  find  in  favor  of 
such  care. 

Lr  Servant,  at  Time  of  Recuvino  Injury,  wm  not  exercising  due  care, 
and  was  performing  dangerous  duties  outside  of  his  regular  employment. 
Am.  St.  Rep..  Vou  I.  — 21 


■Z22  WoBMELL  V.  Maine  Central  R.  R.  Co.      [Maine, 

iio  will  be  held  to  have  assumed  the  risk  incident  thereto,  and  cannot 
-recover,  especially  when  he  knew  as  well  as  the  master  the  dangerous 
nature  of  the  service  in  which  he  engaged. 

Walton  and  Walton,  and  F.  A.  Waldron,  for  the  plaintiff. 
Baker^  Baker,  and  Cornish,  for  the  defendant. 

By  Court,  Foster,  J.  The  plaintiff  was  at  work  as  a  loco- 
motive machinist  in  the  car-shops  of  the  defendant  corpora- 
tion at  Water ville.  On  the  day  the  injury  was  received  he  was 
directed  by  the  foreman  of  the  car-shops  to  go  out  with  an 
engineer  and  move  an  engine  from  the  paint-shop  near  by  to 
the  repair-shop  where  the  plaintiff  worked.  The  engine  with 
iwhich  the  moving  was  to  be  done  was  then  standing  on  the 
lurn-table  in  the  machine-shop.  In  order  to  move  the  engine 
from  the  paint-shop  to  the  repair-shop,  it  became  necessary 
.first  to  remove  certain  cars  which  were  on  the  track  in  the 
yard.  The  plaintiff  went  out,  and  while  waiting  for  the 
switches  to  be  turned,  Philbrick,  the  master  mechanic  of 
the  road,  came  out  and  asked  him  if  he  knew  how  to  shackle 
the  passenger-car  that  stood  upon  the  paint-shop  tracks,  and 
the  plaintiff  replied  that  he  did  not  know  how  to  shackle  any 
cars.  Thereupon  the  master  mechanic  took  him  to  the  car 
and  explained  the  peculiar  danger  that  might  arise  from  the 
ehackling  of  a  passenger-car,  no  special  instructions  being 
given  in  relation  to  shackling  flat-cars,  but  told  him  he  must 
not  get  in  line  of  the  drawbars,  and  finally  told  him  that 
he  guessed  he  could  get  along  by  being  careful.  The  flat-cars 
stood  next  to  the  engine  and  had  to  be  coupled  first.  In  at- 
tempting to  couple  the  tender  to  the  first  flat-car,  he  made 
several  efforts,  but  failed,  as  he  claims,  because  the  shackles 
were  too  short.  Finally,  when  the  engine  and  tender  backed 
the  third  time,  standing  as  he  had  stood  before  between  the 
tender  and  the  flat-car,  with  the  tender  on  his  right  and  the 
flat-car  on  his  left,  while  adjusting  the  shackle  with  his  right 
band,  he  allowed  the  wrist  of  his  left  hand  to  rest  over  the 
edge  of  the  deadwood  of  the  flat-car  directly  over  its  drawbar, 
and  directly  in  front  of  the  buffer  upon  the  tender,  which  is  a 
projecting  arm  out  of  which  the  shackle  extends,  and  failing 
to  connect  the  shackle  with  the  drawbar  of  the  car,  the  buffer 
came  back  against  and  crushed  his  left  hand,  necessitating  its 
amputation. 

The  plaintiff  bases  a  recovery  against  the  defendant  cor- 
f)oration  upon  two  grounds:   that  the  implements  and  means 


June,  1887.]     Wormell  v.  Maine  Central  R.  R.  Co.       323 

furnished  were  not  proper  and  suitable  for  the  work  which  the 
plaintifif  was  directed  to  do,  and  that  Philbrick,  representing 
the  corporation  as  a  vice-principal,  placed  him  in  a  position 
of  peculiar  peril  without  notifying  him  of  the  danger. 

The  latter  position  is  the  one  most  strenuously  urged  and 
relied  on  by  the  plaintiff,  who  recovered  a  verdict  against  the 
defendant,  and  the  case  is  now  before  this  court  on  motion  to 
set  aside  the  verdict,  and  also  on  exceptions. 

With  the  view  which  the  court  has  taken  of  the  case,  it  does 
not  become  necessary  to  determine  in  what  capacity  Philbrick 
was  acting,  whether  as  vice-principal  or  as  a  fellow-servant 
with  the  plaintiff,  inasmuch  as  it  is  the  opinion  of  the  court 
that  the  verdict  cannot  be  upheld  upon  other  grounds. 

The  action  set  forth  is  founded  upon  the  charge  of  negli- 
gence. It  is  the  gist  of  the  action.  To  entitle  the  plaintiff  to 
recover,  he  must  prove  such  negligence,  the  omission  of  some 
duty,  or  the  commission  of  such  negligent  acts  on  the  part  of 
the  defendant  as  occasioned  the  injury  to  the  plaintiff. 

If  the  injury  was  occasioned  through  his  own  neglect  and 
want  of  ordinary  care,  or  was  the  result  of  accident  solely,  the 
defendant  being  without  fault,  the  action  is  not  maintainable. 
"  The  negligence  is  the  gist  of  the  action,  but  the  absence  of 
negligence  contributing  to  the  injury  on  the  part  of  the  plain- 
tiff is  equally  important":  Brown  v.  E.  &  N.  A.  Ry  Co.,  58 
Me.  387;  Osborne  v.  Knox  and  Lincoln  R.  R.,  68  Id.  51;  28 
Am.  Rep.  16. 

There  is  no  presumption  of  negligence  on  the  part  of  the 
defendant  from  the  fact  alone  that  an  accident  has  happened, 
or  that  the  plaintiff  has  received  an  injury  while  in  the  em- 
ployment of  the  defendant.  In  the  long  line  of  decisions,  both 
in  this  country  and  in  England,  from  Priestley  v.  Fowler,  3  Mees. 
&  W.  1,  to  the  present  time,  it  has  been  held  that  the  mere 
fact  of  the  relationship  of  master  to  servant,  without  a  neglect 
of  duty,  does  not  impose  upon  the  master  a  guaranty  of  the 
servant's  safety,  but  that  the  servant  of  sufficient  age  and  intel- 
ligence to  understand  the  nature  of  the  risks  to  which  he  is 
exposed,  engaging  for  compensation  in  the  employment  of  the 
master,  takes  upon  himself  the  natural,  ordinary,  and  apparent 
risks  a.nd  perils  incident  to  such  employment:  Coolbroth  v. 
Maine  Central  R.  R.  Co.,  77  Me.  167;  Nasm  v.  West,  78  Id. 
257. 

The  relationship  of  master  and  servant  may,  and  most  fre- 
quently does,  exist  by  simple  mutual  agreement  that  the  eer- 


324  WoRMELL  V.  Maine  Central  R.  B.  Co.      [Maine, 

vant  is  to  labor  in  the  service  of  the  master.  In  such  case 
the  law  holds  that  the  terms  of  the  contract  are  not  fully  ex- 
pressed, and  that  there  exists  by  implication  reciprocal  rights 
and  obligations  on  the  part  of  each  which  it  will  protect 
and  enforce  equally  as  if  expressed  by  the  parties.  Among 
other  things,  it  implies  that  each  is  to  exercise  ordinary  and 
reasonable  care.  It  implies  that  the  master  is  to  use  ordinary 
care  in  providing  and  maintaining  suitable  means  and  instru- 
mentalities with  which  to  conduct  the  business  in  which  the 
servant  is  engaged,  so  that  the  servant,  being  himself  in  the 
exercise  of  due  care,  may  be  enabled  to  perform  his  duty  with- 
out exposure  to  dangers  not  falling  within  the  obvious  scope 
of  his  employment.  The  implied  duty  of  the  master  in  this 
respect  is  measured  by  the  standard  of  ordinary  care:  Hull  v. 
Hally  78  Me.  117.  The  law  holds  him  to  no  higher  obligation 
than  this. 

Nor  is  the  employer  bound  to  furnish  the  safest  machinery, 
instrumentalities,  or  appliances  with  which  to  carry  on  his 
business,  nor  to  provide  the  best  methods  for  their  operation, 
in  order  to  save  himself  from  responsibility  resulting  from 
their  use.  If  they  are  of  an  ordinary  character  and  such  as 
can  with  reasonable  care  be  used  without  danger,  except  such 
as  may  be  reasonably  incident  to  the  business,  it  is  all  that 
the  law  requires:  Pillsburgh  etc.  R.  R,  Co.  v.  Sentmeyer,  92 
Pa.  St.  276;  37  Am.  Rep.  684. 

Thus  it  has  been  held  that  where  an  injury  happens  to  a 
servant  while  using  an  instrument,  an  engine,  or  a  machine, 
in  the  course  of  his  employment,  the  nature  of  which  he  is  as 
much  aware  as  his  master,  a«id  in  the  use  of  which  he  re- 
ceives an  injury,  he  cannot,  at  all  events  if  the  evidence  is 
consistent  with  his  own  negligence  in  the  use  of  it  as  the  cause 
of  the  injury,  recover  against  his  master,  there  being  no  evi- 
dence that  the  injury  arose  through  the  personal  negligence  of 
the  master;  and  that  it  was  no  evidence  of  such  personal  neg- 
ligence of  the  master  that  he  had  in  use  in  his  business  an 
engine  or  machine  less  safe  than  some  other  in  general  use: 
Dynen  v.  Leach,  26  L.  J.,  N.  S.,  Ex.  221. 

And  in  accordance  with  the  same  principle,  it  was  held  in 
Indianapolis  etc.  R'y  v.  Flanigan,  77  111.  365,  that  a  railroad 
company  was  not  liable  for  an  injury  received  by  an  employee, 
while  coupling  cars  having  double  buffers,  simply  because  a 
higher  degree  of  care  is  required  in  using  them  than  in  those 
differently  constructed. 


June,  1887.]     Wobmell  v.  Maine  Central  R.  R.  Co.       325 

So  in  Fort  Wayne  etc.  R.  R.  v.  Gildersleeve,  33  Mich.  133,  it 
was  decided  that  a  railroad  company  which  used  in  one  of  its 
trains  an  old  mail-car,  which  was  lower  than  others,  was  not 
liable  to  its  servant,  who  knowingly  incurred  the  risk,  for  an 
injury  resulting  from  the  coupling  of  such  old  car  with  an- 
other, though  the  danger  was  greater  than  with  cars  of  equal 
height. 

Every  employer  has  the  right  to  judge  for  himself  in  what 
manner  he  will  carry  on  his  business,  as  between  himself  and 
those  whom  he  employs;  and  the  servant,  having  knowledge 
of  the  circumstances,  must  judge  for  himself  whether  he  will 
eater  his  service,  or  having  entered,  whether  he  will  remain: 
Hay  den  v.  Smithville,  29  Conn.  548;  Buzzell  v.  Laconia  Mfg.  - 
Co.,  48  Me.  121;  77  Am.  Dec.  212;  Shanny  v.  Androscoggin 
Mills,  66  Me.  427;  Coombs  v.  New  Bedford  Cordage  Co.,  102 
Mass.  585;  3  Am.  Rep.  506;  Ladd  v.  New  Bedford  R.  R.  Co., 
119  Mass.  413;  20  Am.  Rep.  331. 

Moreover,  the  law  implies  that  where  there  are  special  risks 
in  an  employment,  of  which  the  servant  is  not  cognizant,  or 
which  are  not  patent  in  the  work,  it  is  the  duty  of  the  master 
to  notify  him  of  such  risks;  and  on  failure  of  such  notice,  if 
the  servant,  being  in  the  exercise  of  due  care  himself,  receives 
injury  by  exposure  to  such  risks,  he  is  entitled  to  recover  from 
the  master  whenever  the  master  knew,  or  ought  to  have 
known,  of  such  risks.  It  is  unquestionably  the  duty  of  the 
master  to  communicate  a  danger  of  which  he  has  knowledge, 
and  the  servant  has  not.  But  there  are  corresponding  duties 
on  the  part  of  the  servant;  and  it  is  held  that  the  master  is 
not  liable  to  a  servant,  who  is  capable  of  contracting  for 
himself,  and  knows  the  danger  attending  the  business  in  the 
manner  in  which  it  is  conducted,  for  an  injury  resulting 
therefrom:  Lovejoy  v.  Boston  and  Lowell  R.  R.  Co.,  125  Mass. 
82;  28  Am.  Rep.  206;  Ladd  v.  New  Bedford  R.  R.  Co.,  supra; 
Priestly  v.  Fowler,  supra.  It  is  his  duty  to  use  ordinary  care 
to  avoid  injuries  to  himself.  He  is  under  as  great  obligation 
to  provide  for  his  own  safety  from  such  dangers  as  are  known 
to  him,  or  discoverable  by  the  exercise  of  ordinary  care  on  his 
part,  as  the  master  is  to  provide  it  for  him.  He  may,  by  the 
want  of  ordinary  care,  so  contribute  to  an  injury  sustained  by 
himself  as  to  destroy  any  right  of  action  that  might,  under 
other  circumstances,  be  available  to  him. 

These  rules  are  elementary  and  fundamental,  and  are 
everjrwhere  recognized.     They  grow  out  of  the  necessities  of 


326  WoRMELL  V.  Maine  Central  R.  R.  Co.      [Maine, 

the  relation  of  master  and  servant,  and  are  founded  and  sus- 
tained by  public  policy.  Though  dressed  in  language  differ- 
ing somewhat  in  style  of  expression,  it  will  be  found  that  the 
decisions  generally  are  in  accord  with  the  principles  herein 
expressed.  One  writer  has  thus  summed  up  the  doctrine  in 
the  following  language:  "As  we  have  seen  it  to  be  the  duty  of 
the  master  to  point  out  such  dangers  as  are  not  patent,  so  it 
is  the  duty  of  the  employee  to  go  about  his  work  with  his  eyes 
open.  He  cannot  wait  to  be 'told,  but  must  act  afiQrmatively. 
He  must  take  ordinary  care  to  learn  the  dangers  which  are 
likely  to  beset  him  in  the  service.  He  must  not  go  blindly 
to  his  work  when  there  is  danger.  He  must  inform  himself. 
This  is  the  law  everywhere":  Beach  on  Contributory  Negli- 
gence, sec.  138;  Russel  v.  Tillotaon,  140  Mass.  201. 

In  speaking  of  the  respective  duties  and  obligations  between 
master  and  servant,  in  reference  to  dangers  which  are  con- 
cealed and  those  which  are  obvious,  the  court,  in  Cummings  v. 
Collins,  61  Mo.  523,  say:  "The  defendants  are  not  liable  for 
any  injury  resulting  from  causes  open  to  the  observation  of  the 
plaintiff,  and  which  it  required  no  special  skill  or  training  to 
foresee  were  likely  to  occasion  him  harm,  although  he  was  at 
the  time  engaged  in  the  performance  of  a  service  which  he 
bad  not  contracted  to  render." 

Upon  a  careful  examination  of  the  evidence  in  the  case 
under  consideration,  we  are  satisfied  that  the  verdict  cannot 
stand.  There  is  not  sufiQcient  evidence  upon  which  a  jury 
could  properly  found  a  verdict  that  the  plaintiff  himself  was 
in  the  exercise  of  due  care  at  the  time  he  received  his  injury. 
This  is  an  afiSrmative  proposition  which,  in  this  state,  and 
many  of  the  others,  it  is  incumbent  on  the  plaintiff  to  make 
out  by  proof  before  he  could  be  entitled  to  recover:  Dickey  v. 
Maim  Tel.  Co.,  43  Me.  492;  Lesan  v.  M.  G.  R.  Co.,  77  Id.  87; 
State  V.  M.  C.  R.  Co.,  77  Id.  541;  Crafts  v.  Boston,  109  Mass.  621 ; 
Taylor  v.  Carew  Mfg.  Co.,  140  Id.  151.  Nor  will  this  proposi- 
tion be  sustained,  where  the  evidence  in  reference  to  it  is  too 
slight  to  be  considered  and  acted  on  by  a  jury.  It  must  be 
evidence  having  some  legal  weight.  Such  is  the  general  doc- 
trine of  the  decisions.  A  mere  scintilla  of  evidence  is  not 
sufiBcient:  Connor  v.  Giles,  76  Me.  134;  Riley  v.  Connecticut 
River  R.  R.,  135  Mass.  292;  Corcoran  v.  Boston  and  Albany 
R.  R.,  133  Id.  509;  Nason  v.  West,  78  Me.  256,  and  cases  there 
cited;  Gornman  v.  Eastern  Counties  R'y  Co.,  4  Hurl.  &  N.  784. 

It  is  not  denied,  as  contended  for  by  the  learned  counsel 


June,  1887.]     Wormell  r.  Maine  Central  R.  R.  Co.       327 

for  the  plaintiff,  that  the  question  of  due  care  is  ordinarily- 
one  of  fact  for  the  jury.  But  the  question  oftentimes  becomes 
one  of  law  whether  there  are  such  facts  or  circumstances 
upon  which  the  jury  can  properly  base  their  determination  in 
favor  of  such  care.  If  not,  it  is  within  the  province  of  th& 
court,  in  the  due  administration  of  justice  according  to  well- 
settled  legal  principles,  to  revise  their  findings. 

And  in  this  case  the  evidence,  uncontradicted  from  th& 
plaintifiF  himself,  as  to  the  manner  of  the  accident,  is  con- 
clusive against  the  verdict  upon  this  point.  Not  only  do  the 
facts  as  detailed  by  him,  and  about  which  there  appears  to  be 
no  controversy,  fail  to  show  the  exercise  of  due  care,  but  rather 
that  degree  of  carelessness  and  neglect  on  his  part  which 
must  be  held  to  have  very  largely,  if  not  wholly,  contributed 
to  the  injury  complained  of.  He  was  a  man  forty-five  years 
of  age,  and  had  been  for  many  years  familiar  with  engines  of 
all  constructions;  had  been  a  locomotive  machinist  for  twelve 
years,  repairing  them  constantly,  and  six  years  in  the  employ 
of  the  defendant  corporation.  For  five  years  prior  to  the  acci- 
dent, engines  with  bufiers  had  been  in  common  use  upon  the 
road,  and  he  had  worked  on  every  pattern  of  engine  that 
came  into  the  shops  where  he  was  employed.  He  testifies 
that  the  engine  with  which  he  was  injured  came  that  morn- 
ing from  the  repair-shop  where  he  was  working,  and  that  it 
might  have  been  there  four  or  five  weeks,  and  he  might  have 
worked  on  it.  He  had  received  a  general  warning  from  Phil- 
brick  to  be  careful,  and  was  specially  warned  of  the  danger 
in  reference  to  shackling  passenger-cars.  It  also  appears? 
from  the  testimony  that  he  stood  there  watching  the  clearing 
of  the  tracks  from  fifteen  to  thirty  minutes.  He  had  full 
leisure  to  examine  and  inform  himself  of  all  the  commoa 
dangers  incident  to  shackling.  It  appears  that  he  attempted 
three  times  to  do  the  shackling,  and  the  third  time  he  re- 
ceived his  injury.  The  first  time  he  stood  with  the  engine 
backing  down  upon  his  right,  himself  facing  the  engine  and 
shackling  apparatus  on  its  rear,  of  which  the  buffer  was  the- 
most  prominent  part.  The  shackle  itself  which  he  took  hold 
of  projected  from  the  buffer,  and  he  could  not  see  one  without 
seeing  the  other.  Everything  was  in  plain  sight.  It  was  ia 
broad  daylight.  At  the  first  attempt  he  failed  to  connect  the 
shackle  with  the  drawbar.  Consequently  the  tender  brought 
up  against  the  deadwood  of  the  car  on  his  left.  As  the 
ehackle  did  not  connect,  the  contact  between  the  tender  and 


328  WoRMEU,  V.  Maine  Central  R.  R.  Co.      [Maine, 

the  flat-car  could  only  have  been  caused  by  the  buffer  striking 
against  the  deadwood  of  the  car  precisely  in  the  spot  where 
he  afterwards  placed  his  left  hand  and  received  his  injury. 
He  then  tried  a  new  shackle,  repeating  the  same  process. 
The  second  time  the  shackle  failed  to  connect,  and  the  engine 
and  car  came  together  again  in  precisely  the  same  manner  as 
at  first,  —  the  buffer  again  striking  the  car  at  the  very  point 
where  afterwards  he  placed  his  hand.  After  these  two  at- 
tempts, immediately  under  his  eye,  he  tried  a  third  shackle, 
and  the  engine  a  third  time  backed  down  towards  him,  again 
giving  him  full  opportunity  for  observation,  he  facing  the 
buffer  as  before,  and  necessarily  looking  right  into  the  shack- 
ling apparatus,  of  which  the  buffer  was  a  part,  and  this  time 
hung  his  left  wrist  over  the  front  edge  of  the  center  of  the 
deadwood,  directly  in  front  of  the  approaching  buffer,  in  pre- 
cisely the  same  place  where  the  buffer  had  just  struck  the 
deadwood  twice  before.  It  was,  as  the  evidence  shows,  the 
only  place  upon  the  car  where  he  could  not  have  placed  his 
hand  with  perfect  safety.  Placing  it  where  he  did,  the  injury 
was  inevitable.  It  required  no  special  skill  or  training  to  know 
that  such  an  act  would  necessarily  result  in  injury.  This  was 
not  an  extraordinary  or  concealed  danger  which  required  to 
be  specially  pointed  out  to  a  person  of  mature  years  and  ordi- 
nary intelligence.  He  had  been  employed,  as  he  himself  testi- 
fies, for  twelve  years  solely  in  work  about  and  upon  all  manner 
of  engines  and  cars,  including  engines  with  buffers,  precisely 
as  this  one  was  equipped.  No  man  needs  a  printed  placard 
to  announce  a  yawning  abyss  when  he  stands  before  it  in 
broad  daylight:  Yeaton  v.  Boston  and  Lowell  R.  R.,  135  Mass. 
418;  Coolbroth  v.  Maine  Central  R.  R.  Co.,  77  Me.  165;  Phila- 
delphia etc.  R.  R.  Co.  V.  Keenan,  103  Pa.  St.  124;  Osborne  v. 
Knox  and  Lincoln  R.  R.,  68  Me.  51;  28  Am.  Rep.  16. 

And  it  was  held  in  Wheeler  v.  Wason  Mfg.  Co.,  135  Mass. 
298,  that  where  the  servant  is  as  well  acquainted  as  the  mas- 
ter with  the  dangerous  nature  of  the  machinery  or  instrument 
used,  or  of  the  service  in  which  he  is  engaged,  he  cannot  re- 
cover: Beach  on  Contributory  Negligence,  sec.  140. 

Very  similar  were  the  facts  in  the  case  of  Hathaway  v.  Mich- 
igan Cent.  R.  R.,  51  Mich.  253,  47  Am.  Rep.  569,  to  these  in 
the  case  before  us.  There,  the  plaintiff,  an  inexperienced 
brakeman,  was  called  upon  by  the  conductor  in  the  night-time 
to  couple  two  cars  of  the  Erie  road,  which  were  made  specially 
dangerous  by  having  double  deadwoods,  which  the  plaintiff 


June,  1887.]     Wormell  v.  Maine  Central  R.  R.  Co.       329 

had  never  seen  before.  In  that  case,  as  in  the  present,  one  of 
the  real  grounds  set  up  by  the  plaintiff  was,  that  he  had  not 
been  suflHciently  instructed  in  what  was  required  of  him  by 
the  company  to  enable  him  to  discover  and  appreciate  the 
danger,  and  that  some  notice  thereof  should  have  been  given 
him  by  the  company  other  than  the  general  one  which  he  re- 
ceived. The  court  say:  "The  plaintiff  had  the  full  opportu- 
nity of  examining  the  one  by  which  he  stood  some  momenta 
before  the  cars  came  together, — its  size,  shape,  and  the  loca- 
tion of  the  drawbar  were  before  him.  He  had  only  to  look  at 
it  to  be  informed  of  any  perils  surrounding  it.  The  moving 
car,  at  a  distance  of  twenty  feet,  with  its  deadwood  and  draw- 
bar in  plain  view,  slowly  approached  the  one  where  the  plain- 
tiff was  standing.  It  does  not  appear  that  there  was  any 
hurry  about  the  business.  How  could  the  plaintiff  have  been 
better  warned?  He  could  see  the  deadwoods  and  drawbar 
thereon  as  well  as  if  he  had  made  the  coupling  of  them  a 
thousand  times  before.  He  could  not  fail  to  see  if  he  looked 
at  all":  See  also  Taylor  v.  Carew  Mfg.  Co.,  140  Mass.  151. 

If  the  plaintiff,  as  is  contended,  was  at  the  time  of  this  un- 
fortunate occurrence  in  the  performance  of  duties  outside  of 
his  regular  employment,  he  will  nevertheless  be  held  to  have 
assumed  the  risks  incident  to  those  duties.  This  principle  is 
settled  by  numerous  decisions:  Woodley  v.  Metropolitan  Dis- 
trict R'y  Co.,  2  Ex.  389;  Railroad  v.  Fort,  17  Wall.  553;  Rum- 
mell  V.  Dilworth,  111  Pa.  St.  343;  Buzzell  v.  Laconia  Mfg.  Co.f 
48  Me.  121;  77  Am.  Dec.  212;  Hayden  v.  Smithville,  29  Conn. 
548;  Wright  v.  New  York  Central  R.  R.,  25  N.  Y.  570;  Leary  v. 
Boston  and  Albany  R.  R.,  139  Mass.  587;  52  Am.  Rep.  733. 

In  the  last  case  cited,  where  the  question  is  fully  discussed, 
the  court  say:  "Where  one  has  assumed  an  employment,  if 
an  additional  or  more  dangerous  duty  is  added  to  his  original 
labor,  he  may  accept  or  refuse  it.  If  he  has  an  existing  con- 
tract for  the  original  service,  he  may  refuse  the  additional  and 
more  dangerous  service;  and  if  for  that  reason  he  is  discharged, 
he  may  avail  himself  of  his  remedy  on  his  contract.  If  he  has 
no  such  contract,  and  knowingly,  although  unwillingly,  accepts 
the  additional  and  more  dangerous  employment,  he  accepts 
its  incidental  risks;  and  while  he  may  require  the  employer 
to  perform  his  duty,  he  cannot  recover  for  an  injury  which 
occurs  only  from  his  own  inexperience." 

From  the  disposition  of  the  case  already  made,  it  becomes 
unnecessary  to  consider  the  defendant's  exceptions.     The  law 


330  Hazeltine  v.  Belfast  etc.  R.  R.  Co.         [Maine, 

pertaining  to  the  case,  in  order  to  cover  it  fully,  at  the  time  of 
the  trial  was  necessarily  somewhat  complicated;  and  it  is  very 
questionable  whether  the  numerous  abstract  propositions  ap- 
pearing in  the  charge,  and  following  each  other  in  quick 
succession,  could  be  readily  comprehended  by  a  jury  unac- 
customed to  grapple  with  abstruse  and  intricate  legal  proposi- 
tions. While  the  charge  may  have  been  correct  in  the 
abstract,  we  are  of  the  opinion  that  several  of  the  defendant's 
requested  instructions  were  proper  to  a  full  understanding  of 
the  principles  involved,  and  their  application  to  the  questions 
at  issue,  and  should  have  been  given. 

As  the  case  is  disposed  of,  however,  on  other  grounds,  noth- 
ing further  need  be  said  in  relation  to  the  exceptions. 

Motion  sustained.     New  trial  granted. 

Servant  Guilty  of  Contributory  Negligence  cannot  recover  dsunagea 
for  an  injury:  Hubgh  v.  New  Orleans  R.  R.  Co.,  54  Am.  Dec.  565,  and  note 
673;  Buzzell  v.  Laconia  Mfg.  Co.,  77  Id.  212. 

As  BETWEEN  MASTER  AND  SERVANT,  the  latter  assumes  Buch  risks  as  are 
incident  to  the  service,  and  he  is  supposed  to  have  contreicted  on  those  terms: 
Noyea  v.  Smith,  65  Am.  Dec.  222,  and  note;  Illinois  Central  R.  R.  Co.  v.  Cox, 
71  Id.  298;  Snow  v.  Hotisatonic  R.  R.  Co.,  85  Id.  720. 

Duty  of  Master  to  Furnish  Sate  Machinery,  materials,  etc. :  Snow  v. 
Houaaionic  R.  R.  Co.,  85  Am.  Dec.  720,  and  note  730;  Cowles  v.  Richmond  etc 
R.  R.  Co.,  37  Am.  Rep.  620;  Kelley  v.  Silver  Spring  Co.,  34  Id.  615;  Gibson  v. 
Pacijic  R.  R.  Co.,  2  Id.  497. 

Duty  of  Master  to  Notify  Servant  of  dangers  of  his  employment: 
Baxter  v.  Roberts,  13  Am.  Rep.  160,  and  note  164;  Parlchurst  v.  Johnson,  45 
Id.  28;  Fones  v.  Phillips,  43  Id.  264;   Williams  v.  Churchill,  50  Id.  304. 

Liability  of  Master  to  Servant  for  work  performed  by  the  latter  out- 
side of  his  regular  employment:  Leary  v.  Boston  etc  R.  R.,  52  Am.  Bep. 
733,  and  note  737. 


Hazeltine   V.   Belfast    and    Moosehead    Rail- 
EOAD  Company. 

[79  Maine,  411.] 
By-law  of  Corporation  must  be  Regarded  as  Contract  between  the 

corporation  and  its  stockholders,  when  it  states  the  conditions  ou  which 

dividends  are  to  be  paid,  as  between  preferred  and  unpreferred  stock. 
In  Declaring  Dividends  on  Preferred  Stock,  the  arrearages  of  one  year 

cannot  be  paid  out  of  the  earnings  of  a  subsequent  year,  when  the  by-law 

of  the  corporation  upon  the  subject  implies  that  the  entire  net  earnings 

of  each  year  shall  be  paid  out  in  dividends. 
Profits  Generally  Mean  the  gain  which  comes  in  or  is  received  from  any 

business  or  investment  where  both  receipts  and  payments  are  to  be  taken 

into  account. 


June,  1887.]    Hazeltine  v.  Belfast  etc.  R.  R.  Co.  331 

Profits  for  Year  Mea:^  the  surplus  receipts  after  paying  expenses,  and 
restoring  the  capital  to  the  position  it  was  in  on  the  first  day  of  the  year. 

Net  Earnings  of  Railroad  are  Gross  Receipts  less  the  expenses  of  oper- 
ating the  road  to  earn  such  receipts.  Among  these  expenses  is  in* 
eluded  interest  on  debts. 

RiQHTS  of  Preferred  Stockholders  are  Enforceable  against  the  cor- 
poration according  to  the  terms  of  the  contract  made  by  them. 

Dividends  may  be  Paid,  although  the  corporation  is  not  free  from  floating 
debt. 

Preferred  Stockholders  are  Entitlbd  to  Dividends  from  earnings  on 
hand,  without  first  making  provision  for  the  payment  of  the  principad  of 
the  bonded  debt,  where  the  corporation  is  in  good  circumstances  and 
credit,  and  could  doubtless  provide  for  an  extension  of  the  time  for  pay- 
ing such  debt,  or  make  payment  by  the  issue  of  other  bonds. 

EJquity  will  Compel  Directobs  op  Corporation  to  Declare  Dividend 
in  favor  of  holders  of  preferred  stock,  who  are  shown  to  be  entitled 
thereto. 

Bill  in  equity  on  behalf  of  the  holders  of  preferred  stock  in 
the  Belfast  and  Moosehead  Railroad  Company,  to  compel  the 
declaring  of  a  dividend  in  their  favor. 

William  H.  Folger,  for  the  plaintiflfs. 
Drummond  and  Drummond,  for  the  defendants. 

By  Court,  Peters,  C.  J.  The  facts  of  this  case,  and  most 
of  its  questions,  were  before  the  court  in  the  case  of  Belfast  etc. 
R.  R.  Co.  V.  Belfast,  77  Me.  445.  The  preferred  stockholders  of 
the  company  are  now  complainants  against  the  company  and 
its  directors,  seeking  to  obtain  through  a  court  of  equity  divi- 
dends on  their  stock. 

On  March  20,  1886,  when  this  bill  was  brought,  the  follow- 
ing facts  existed:  The  road  was,  and  since  May  10,  1871,  had 
been,  leased  to  the  Maine  Central  Railroad  Company,  the  lease 
to  run  until  May  10, 1921,  the  lessee  to  operate  the  road  during 
the  intervening  period  at  its  own  risk  and  expense,  to  keep  it 
in  repair,  and  pay  all  taxes  thereon,  and  pay  a  rent  of  $36,000 
per  year. 

The  common  stock  amounts  to  $380,400,  and  the  preferred 
to  $267,700,  all  paid  in,  amounting  at  par  value  to  $648,100. 
The  road  cost  $1,050,000.  The  means  expended  for  its  con- 
struction, besides  stock  paid  in,  consisted  of  a  bonded  debt  of 
$150,000,  a  floating  debt  of  $150,000,  and  an  indebtedness  to 
the  city  of  Belfast,  the  principal  stockholder,  of  $101,900  for 
borrowed  money.  The  bonded  debt  is  secured  by  mortgage 
on  the  road,  the  principal  of  which  will  mature  May  15,  1890, 


332  Hazeltine  v.  Belfast  etc.  R.  R.  Co.        [Maine, 

having  existed  in  the  same  form  since  May  15,  1870,  the  in- 
terest thereon  having  been  regularly  paid  semi-annually.  It 
is  the  only  debt  existing  against  the  company,  nor  is  it  pre- 
tended that  any  other  can  arise  against  the  company  from 
this  time  to  the  end  of  the  lease  in  1921.  The  company's  ex- 
penses are  trifling,  being  only  such  as  are  necessary  to  keep 
up  a  formal  corporate  organization.  The  floating  debt  had 
been  wholly  extinguished,  the  borrowed  money  paid,  and  there 
were  in  the  treasury  $22,412.32  of  cash  assets,  all  from  rents 
received  under  the  lease,  at  the  date  of  this  complaint. 

At  that  time  the  directors  had  laid  aside  out  of  money  on 
hand  nineteen  thousand  nine  hundred  dollars  which,  with 
future  rents,  might  be  available  as  a  reserve  fund  wherewith 
to  pay  the  bonded  debt  when- it  matures  in  1890.  But  before 
this  appropriation,  which  can  easily  be  recalled,  the  complain- 
ants had  used  due  diligence  in  the  way  of  demands,  notices, 
motions,  and  other  movements  to  obtain  from  the  directors  a 
recognition  of  their  equitable  right  to  a  dividend. 

Three  questions  arise  on  the  facts,  —  1.  Are  the  preferred 
stockholders  entitled  to  annual  dividends,  if  earned  ?  2.  At 
the  date  of  the  bill,  had  dividends  been  earned  ?  3.  Is  this  a 
case  authorizing  the  court  to  require  the  directors  to  declare  a 
dividend  ? 

While  all  of  these  questions  were  hardly  before  the  court  in 
the  former  case,  to  be  directly  adjudicated,  still  they  were 
necessarily  involved  in  it,  and  we  then  considered  them  care- 
fully, hoping  the  parties  would  be  satisfied  with  the  results 
which  were  foreshadowed,  without  proceeding  with  further 
litigation.  We  then  indicated  that  we  were  of  the  opinion 
that  the  preferred  stockholders  would  be  entitled  to  dividends 
after  the  floating  debt  became  paid,  and  after  considering  the 
questions  anew,  we  at  this  time  see  nothing  to  require  us  to 
change  that  opinion. 

There  can  be  no  possible  doubt  that  the  obligation  of  the 
company  to  the  privileged  shares  rests  on  by-law  18,  and  that 
the  by-law  establishes  the  terms  of  a  contract  between  com- 
pany and  stockholders.     We  have  already  so  decided. 

The  by-law  runs  thus:  "Dividends  on  the  preferred  stock 
shall  first  be  made  semi-annually  from  the  net  earnings  of  the 
road,  not  exceeding  six  per  centum  per  annum,  after  which 
dividend,  if  there  shall  remain  a  surplus,  a  dividend  shall  be 
made  on  the  non-preferred  stock  up  to  a  like  per  cent  per  an- 
num; and  should  a  surplus  then  remain  of  net  earnings,  after 


June,  lt387.]     Hazeltine  v.  Belfast  etc.  R.  R.  Co.  333 

both  of  said  dividends,  in  any  one  year,  the  same  shall  be 
divided  pro  rata  on  all  the  stock." 

The  construction  which  we  gave  to  this  contract  in  the  pre- 
vious case  was  certainly  very  liberal  towards  the  holders  of 
the  common  stock,  and  all  the  doubts  were  weighed  in  theii 
behalf,  in  the  decision  that  the  preferred  stock  was  non-cumu- 
lative. Had  the  by-law  merely  provided  that  the  preferred 
shares  should  be  entitled  to  a  dividend  of  six  per  cent  an- 
nually when  earned,  the  arrearages  of  one  year  would  have 
been  payable  out  of  the  earnings  of  subsequent  years,  and 
there  would  have  been  no  occasion  for  the  present  controversy 
between  the  two  classes  of  stockholders.  There  is  no  ques- 
tion among  the  authorities  on  this  point:  Jones  on  Railways, 
sec.  620;  Morawetz  on  Corporations,  2d  ed.,  sec.  458;  Cook  on 
Stock  and  Stockholders,  sec.  272.  The  latter  author,  in  a  note 
to  section  269  of  his  work,  published  in  1887,  cites  Belfast  etc. 
R.  R.  Co.  V.  Belfast,  77  Me.  445,  supra,  as  inconsistent  with 
the  general  rule,  but  states  the  ground  for  the  variance:  thai 
inasmuch  as  the  by-law  implies  that  the  entire  net  earningf 
of  each  year  should  be  paid  out  in  dividends,  a  deficiency  o? 
preferred  dividend  in  any  year  could  not  be  made  up  in  sub 
sequent  years. 

The  next  question  is,  whether  the  money  on  hand  shall 
be  regarded  as  net  earnings  out  of  which  a  preferred  dividend 
should  be  paid;  and  the  question  has  been  discussed,  second- 
arily, as  to  what  extent  future  earnings  under  the  lease  will 
come  under  the  same  head.  This  point  depends  usually  on 
several  considerations,  is  a  relative  question, — not  always 
susceptible  of  clear  demonstration, — and  is  a  matter  to  a  con- 
siderable extent  of  good  judgment  in  conducting  the  com- 
pany's business,  and  of  good  faith  in  upholding  its  contracts 
on  the  part  of  directors. 

All  the  cases  in  which  an  inquiry  has  arisen  concerning  the 
propriety  or  legality  of  paying  preferred  dividends,  where  the 
contract  is  to  pay  as  often  as  annually,  if  there  are  annual 
earnings,  concur  in  this,  that  the  inquiry  must  be  whether  net 
profits  have  been  earned  in  the  particular  year  at  the  expira- 
tion of  which  dividends  are  demanded.  The  future  wants 
and  liabilities  of  the  company  may,  no  doubt,  be  taken  into 
the  calculation  to  a  certain  extent,  as  will  be  more  fully  ex- 
plained hereafter. 

We  think  that  under  any  of  the  approved  definitions  of  net 


334  Hazeltine  v.  Belfast  etc.  R.  R.  Co.        [Maine, 

earnings,  meaning  such  net  earnings  as  are  applicable  to  divi- 
dends, the  complainants  make  out  a  case. 

Certainly,  in  a  literal  view,  there  must  be  net  earnings  each 
year  till  1890,  if  not  up  to  the  end  of  the  lease.  For  the  bills 
payable  are  $9,000  per  annum,  a  trifle  only  more,  and  bills 
receivable  are  $36,000,  leaving  $27,000  balance  on  hand  each 
year.  The  preferred  dividend  would  be  $16,062  per  annum, 
leaving  about  $11,000  in  the  treasury  annually.  This  balance 
cannot  now  possibly  be  paid  on  any  debt  of  the  company.  It 
is  only  claimed  by  the  respondents  that  in  the  future  it  may 
be  so  used. 

In  Hill  V.  Supervisors,  4  Hill,  20,  it  is  said :  "  Profits  gen- 
erally mean  the  gain  which  comes  in  or  is  received  from  any 
business  or  investment  where  both  receipts  and  payments  are 
to  be  taken  into  account."  The  case  of  Dent  v.  London  Tramr 
way  Co.,  L.  R.  16  Ch.  344,  strongly  resembles  the  present 
case  on  this  point.  There,  as  here,  the  preference  dividends 
were  dependent  upon  the  profits  of  the  particular  year  only. 
Jessel,  master  of  the  rolls,  says:  "That  means  this,  that  the 
preferred  share-holders  only  take  a  dividend  if  there  are 
profits  of  the  year  sufficient  to  pay  their  dividend.  They  are 
co-adventurers  for  each  particular  year,  and  can  only  look  to 
the  profits  of  that  year.  If  they  are  lost  for  that  year,  they 
are  lost  forever.  Profits  for  the  year  mean  the  surplus  receipts 
after  paying  expenses  and  restoring  the  capital  to  the  position 
it  was  in  on  the  first  day  of  January  of  that  year  ":  Elkins  v. 
Camden  and  Atlantic  R.  R.  Co.,  36  N.  J.  Eq.  233,  decided  in 
1882,  presents  questions  similar  to  the  present,  and  announces 
the  rule  that  the  preferred  stockholders'  "  rights  are  to  be  gov- 
erned and  regulated  each  year  by  the  pecuniary  condition  of 
the  corporation  at  the  close  of  the  year." 

In  Morawetz  on  Corporations,  2d  ed.,  sec.  459,  an  approved 
work,  the  doctrine  is  stated:  "The  directors  of  a  corporation 
have  a  discretionary  power  to  withhold  profits  from  the  holders 
of  common  shares  in  order  to  accumulate  a  surplus,  etc.;  but 
it  is  the  duty  of  the  directors  to  pay  the  preferred  share-hold- 
ers their  promised  or  guaranteed  dividends,  whenever  the  com- 
pany has  acquired  funds  which  may  rightfully  be  used  for  the 
payment  of  dividends.  This  rule  applies  with  peculiar  strict- 
ness where  the  preferred  share-holders  are  entitled  to  receive 
their  dividends  annually  out  of  profits  earned  during  the  cur- 
rent year  only,  and  a  deficit  in  any  year  does  not  become 
payable  out  of  subsequent  profits." 


June,  1887.]     Hazeltine  v.  Belfast  etc.  R.  R.  Co.  335 

But  apply  to  the  question  the  definition  of  net  profits  which 
would  be  regarded  as  the  most  liberal  to  the  company,  or  the 
holders  of  the  common  stock;  allow  that  there  must  be  net 
profits  such  as  should  be  applied  to  dividends;  and  that  funds 
may  be  kept  on  hand  sufiicicnt  to  make  reasonable  provision 
for  both  the  present  and  future  necessities  of  the  company.  A 
very  much  quoted  definition,  as  applicable  to  railroad  corpora- 
tions, is  that  formulated  by  Mr.  Justice  Blatchford  in  St.  John 
V.  Erie  R.  R.  Co.,  10  Blatchf  271:  "Net  earnings  are,  prop- 
erly, the  gross  receipts  less  the  expenses  of  operating  the  road 
to  earn  such  receipts.  Interest  on  debts  is  paid  out  of  what 
thus  remains,  that  is,  out  of  net  earnings.  Many  other  liabili- 
ties are  paid  out  of  the  net  earnings.  When  all  liabilities  are 
paid,  either  out  of  the  gross  receipts  or  out  of  the  net  earn- 
ings, the  remainder  is  the  profit  of  the  share-holders  to  go 
toward  dividends  which  in  that  way  are  paid  out  of  the  net 
earnings."  This  definition  was  substantially  repeated  in 
Warren  v.  King,  108  U.  S.  389,  Mr.  Justice  Blatchford,  upon 
another  bench,  delivering  the  opinion,  and  asserting  that 
"  while  the  rights  of  a  preferred  stockholder  are  not  to  be 
superior  to  the  rights  of  creditors,  they  are  nevertheless  en- 
forceable against  the  company  according  to  the  terms  of  the 
contract  made  by  them."  We  refer  to  the  views  to  which  we 
committed  ourselves  upon  this  branch  of  the  case  in  Belfast 
etc.  R.  R.  Co.  V.  Belfast,  77  Me.  452,  before  cited. 

It  will  be  noticed  that  the  definition  of  net  profits,  in  the 
case  of  railroad  corporations,  which  are  generally  more  heavily 
in  debt  than  other  kinds  of  business  corporations,  calls  for  the 
payment  of  interest  on  the  company  debt,  but  not  necessarily 
for  payment  of  any  portion  of  the  principal.  At  this  point 
the  parties  come  to  a  closer  issue  and  really  to  the  turning- 
point  of  the  controversy;  and  that  is,  whether  the  bonded  debt 
of  one  hundred  and  fifty  thousand  dollars,  due  in  1890,  must 
be  first  wholly  paid  before  any  declaration  of  dividends.  The 
respondents  so  contend.  The  complainants  contend  that,  in 
ascertaining  net  profits,  a  portion  only  of  the  earnings  should 
be  reserved  for  the  payment  of  the  debt,  and  that  the  debt,  or 
some  portion  of  it,  when  it  comes  due,  should  be  extended  in 
some  form. 

The  authorities  on  the  subject  of  ascertaining  what  are  the 
annual  net  profits  or  earnings  of  a  railroad  corporation,  per- 
haps without  exception,  make  a  distinction  between  the  pay- 
ment of  its  floating  debt  and  the  payment  of  its  permanent  or 


Hazeltine  v.  Belfast  etc.  R.  R  Co.        [Maine, 

bonded  debt,  — between  ordinary  and  extraordinary  indebted- 
ness. It  is  not  indispensable,  however,  that  the  company  be 
free  from  the  pressure  of  floating  debt  before  it  may  lawfully 
pay  dividends  even  to  holders  of  its  non-preferred  stock.  It 
may,  even  under  some  circumstances,  borrow  money  to  pay 
dividends:  Morawetz  on  Corporations,  2d  ed.,  sec.  438,  and 
cases. 

In  many  cases  there  is  diflBculty  in  ascertaining  what  thd 
actual  condition  of  a  company  may  be.  None  exists  here. 
There  could  not  well  be  an  instance  of  less  complicated  affairs. 
The  business  of  the  company  is  guaranteed,  its  amount  of 
income  fixed,  its  expenses  are  nominal,  and  its  freedom  from 
all  the  liabilities  and  risks  usually  incident  to  the  manage- 
ment of  a  railroad  is  assured  for  the  next  thirty-three  years. 

In  every  sense  this  last  debt  of  one  hundred  and  fifty  thou- 
sand dollars  is  a  permanent  debt.  It  is  a  bonded,  mortgage, 
and  interest-bearing  debt.  The  lease  secures  it  many  times 
over.  The  road  itself  is  an  absolute  security  for  it,  and  un- 
deniably for  much  more.  It  is  a  permanent  debt  for  another 
reason.  It  entered  into  the  construction  of  the  road,  and  is 
represented  in  its  permanent  property.  A  distinction  between 
expenses  for  construction  and  ordinary  expenses  is  maintained 
in  the  leading  cases  on  this  subject.  The  argument  is,  that 
capital  paid  in  and  capital  borrowed  unitedly  produced  the 
earnings,  and  that  a  proportionate  share  of  the  earnings  should 
be  accorded  to  each:  Belfast  etc.  R.  R.  Co.  v.  Belfast,  77  Me. 
453.  In  that  view  the  bonded  debt  earns  but  nine  thousand 
dollars  per  annum  of  the  thirty-six  thousand  dollars  earned 
in  all. 

It  will  be  readily  seen  that  there  are  special  reasons  for 
deeming  the  complainants'  claim  equitable.  They  have  been 
required  to  remain  in  waiting  for  dividends  for  many  years, 
in  order  that  a  large  amount  of  the  company's  indebtedness, 
say  two  hundred  and  fifty  thousand  dollars,  should  be  first 
paid,  quite  an  exacting  construction  against  them  being  re- 
quired to  produce  such  result.  The  company  or  its  common 
share-holders  would  have  suffered  no  injustice  had  the  debt  to 
the  city  of  Belfast  been  placed  in  a  permanent  funded  form. 
Another  thing,  before  spoken  of,  which  favors  the  complain- 
ants is,  that  by  our  former  opinion  their  dividends  were  held 
to  be  non-cumulative,  and  if  lost  now  are  forever  lost.  Still 
another  thing  may  be  of  importance  enough  to  be  taken  into 
account,  and  that  is  that  the  corporation  is  paying  six  per 


June,  1887.]     Hazeltine  v.  Belfast  etc.  R.  R.  Co.  33T 

cent  interest  on  its  bonds,  and  receives  about  one  third  inter- 
est on  the  sums  which  it  proposes  to  keep  on  hand. 

The  respondents  go  further  than  to  deny  that  net  profits 
have  been  or  will  be  earned;  they  contend  that  they  should 
not  be  divided  even  if  they  have  been  earned.  Of  course  all. 
the  net  earnings  of  an  indebted  company  should  not  always; 
be  devoted  to  dividends.  We  think  a  company  should  have 
a  right  to  base  its  calculations  upon  a  final  payment  of  its 
debts  at  some  time.  But  steps  in  that  direction  are  not  to  be 
untimely,  or  oppressive  to  other  interests,  and  should  be  suchi 
as  not  to  unreasonably  interfere  with  the  expectations  or  inter- 
ests of  stockholders,  and  such  as  will  not  prevent  a  reasonable 
performance  of  all  other  obligations  which  have  been  assumed, 
by  the  company.  The  more  practical  question  is  as  to  how- 
far  the  earnings  shall  be  reserved,  and  how  far  divided.  But  - 
it  comes  round  to  the  primary  question,  which  is,  Have  net. 
profits  been  earned,  such  as  are  reasonably  applicable  to  divi- 
dends? The  argument  of  the  learned  counsel  for  the  respond- 
ents seems  to  proceed  upon  the  idea  that  the  complainants 
have  a  prior  right  to  receive  dividends  only  whenever  they 
have  been  actually  declared,  but  that  the  company  has  th& 
right  to  refuse  to  declare  dividends,  whether  they  have  been* 
earned  or  not.  Such  is  not  the  letter  or  spirit  of  the  contract, 
entered  into.  The  promise  of  the  company  was,  that  divi- 
dends semi-annually  from  net  earnings  "  shall  be  made." 

But  when  the  present  mortgage  debt  of  one  hundred  and 
fifty  thousand  dollars  was  established,  it  was  to  be  paid  in: 
twenty  years,  and  shall  it  not  be  paid  at  the  end  of  that  time, 
asks  counsel.  It  may  have  been  supposed  that  twenty  years 
would  be  long  enough  for  the  debt  to  run  without  a  renewal. 
But  if  it  was  even  supposed  that  the  debt  could  be  conve- 
niently paid  at  maturity  without  renewal,  was  it  not  calculated 
by  the  parties  that  dividends  would  be,  in  the  mean  time^ 
distributed  to  the  preferred  stockholders?  The  result  only 
proves  a  miscalculation  by  the  company  of  its  ability  to  liter- 
ally perform  its  obligations.  Is  it  an  excuse  for  not  declaring 
dividends  out  of  net  earnings,  provided  there  are  net  earn- 
ings, merely  that  a  company  cannot  pay  an  entire  bonded 
debt  at  maturity  without  creating  a  new  debt  or  borrowing 
again?  Is  it  not  reasonable  to  require  the  company  to  keep 
all  its  obligations,  when  they  can  easily  do  so?  If  the  com- 
pany had  no  means  or  credit  which  would  enable  them  to 
place  a  new  obligation  on  the  market  '<here  would  be  force  ia 

AM.  St.  Rep.,  Vol.  I.— 22 


^338  Hazeltine  v.  Belfast  etc.  R.  R.  Co.        [Maine, 

the  position.  But  no  such  inability  is,  or  possibly  can  be,  pre- 
tended. Can  it  be  said  that  a  railroad  company  makes  no 
net  profits  in  a  year  in  which  it  gains  thirty-six  thousand 
<iollar8,  and  has  only  nine  thousand  dollars  to  pay  out,  be- 
cause it  owes  one  hundred  and  fifty  thousand  dollars,  payable 
in  four  years,  abundantly  secured  upon  its  property,  when  the 
■company  has  a  perfect  credit,  and  abundant  means  to  enable 
it  to  replace  the  old  with  a  new  loan  on  advantageous  terms? 
Does  a  merchant  who  carries  on  business  partly  on  borrowed 
capital  earn  no  profits  in  a  year,  at  the  end  of  which,  besides 
retaining  his  capital,  he  has  received  twenty-seven  thousand 
•dollars  more  than  all  he  has  paid  out,  simply  because  he  owes 
a  debt  for  his  borrowed  capital,  which  he  has  abundant  abil- 
ity to  pay,  but  not  without  further  borrowing?  Says  Mora- 
wetz,  Corporations,  sec.  439:  "In  ascertaining  whether  a 
■company  has  a  surplus  which  nay  be  divided  among  the 
fihare-holders,  permanent  improvements  made  by  means  of 
borrowed  money  may  often  be  valued  as  counterbalancing 
the  liability  of  the  company  for  the  money  used  to  construct 
rthem." 

Two  cases  are  relied  on  for  the  respondents,  neithet*  of  >f  hich 
appears  to  us  as  having  any  tendency  to  support  their  general 
position.  One  is  Karnes  v.  Rochester  Ry  C?.,  4  Abb.  Pr.,  N.  S., 
107.  That  case  shows  that  two  sets  of  railroad  directors  were 
chosen,  and  a  controversy  was  going  on  between  them  as  to 
which  was  the  legitimate  board.  Pending  that  litigation,  a 
common  share-holder — there  was  no  preferred  stock — brought 
a  bill  to  have  all  the  moneyed  assets  of  the  corporation  dis- 
tributed among  the  stockholders.  There  were  thirty-six  thou- 
sand dollars  in  government  bonds  on  hand,  the  debt  was 
seventy  thousand  dollars,  due  in  seventeen  years,  the  annual 
expenses  were  about  ten  thousand  dollars,  and  the  bill,  which 
was  demurred  to,  did  not  allege  whether  there  was  any  annual 
balance  of  profits  or  not.  The  court,  amongst  other  grounds 
of  decision,  said  that  no  breach  of  any  obligation  on  the  part 
of  the  company  to  the  stockholders,  nor  any  omission  of  duty, 
was  alleged;  that  the  acts  of  directors  should  not  be  inter- 
fered with  by  courts,  except  to  prevent  injustice;  that  the 
•corporation  could  make  no  dividends,  and  the  directors  were 
not  a  party  to  the  bill;  that  there  was  nothing  to  indicate 
that  the  money  on  hand  was  not  needful  for  the  security  of 
the  creditors  of  the  company;  ^hat  it  was  not  even  alleged 
<4hat  the  directors  had  refused  to  make  a  dividend,  nor  stated 


June,  1887.  ]     Hazeltine  v.  Belfast  etc.  R.  R.  Co  339 

that  one,  in  justice,  ought  to  be  made;  and  the  bill  was  dis- 
missed. 

The  other  case  is  New  York  etc.  R.  R.  Co.  v.  Nichals,  lately 
determined  in  the  supreme  court  of  the  United  States,  ro- 
ported  in  15  Fed.  Rep.  575.  The  case  was  first  decided  in 
the  circuit  court,  21  Blatchf.  177,  where  it  was  held  that  the 
company  could  not,  against  the  interests  of  preferred  stock- 
holders, divert  a  large  quantity  of  funds  from  them  to  other  uses 
of  the  company.  The  decree  was  reversed  in  the  upper  court, 
not  for  any  difference  between  the  two  tribunals  as  to  the  law 
of  the  case,  as  stated  by  the  judge  below,  but  upon  a  differ- 
ence of  opinion  in  making  an  application  of  the  law  to  the 
facts.  The  points  of  the  case  are  correctly  represented  by  the 
head-notes,  which  are  as  follows:  "The  holder  of  preferred 
stock  is  not  entitled  absolutely  to  a  dividend,  even  if  there  be 
'  net  earnings '  from  which  such  dividend  might  be  paid.  The 
directors  may  use  the  '  net  earnings '  for  the  improvement  of 
the  road,  where  such  improvement  is  shown  to  be  imperatively 
necessary  to  the  preservation  of  the  corporate  property  and 
the  continuance  of  the  corporate  business."  The  court  were 
deeply  impressed  with  the  uncontradicted  testimony  of  the 
president  of  the  company,  that  "but  for  using  the  funds  in 
question  in  that  case,  the  company  could  not  have  paid  its 
fixed  charges,  but  would  have  again  gone  into  bankruptcy, 
and  the  entire  interest  of  the  stockholders  been  destroyed." 
That  is  unquestionable  doctrine.  Preferred  stockholders  are 
not  to  be  protected  to  the  extent  of  endangering  the  rights  of 
creditors,  or  of  wrecking  or  crippling  the  enterprise  of  the 
road:  Clark  on  Stockholders,  sec.  271;  Culver  v.  Reno  etc.  Co., 
91  Pa.  St.  367. 

The  condition  of  the  railroad  above  alluded  to,  the  Erie  sys- 
tem, illustrates  the  fallacy  of  the  claim  that  all  the  earnings 
of  a  railroad  corporation  should  be  withheld  from  stockhold- 
ers until  its  debts  are  paid.  That  company  has  a  capital  of 
over  seventy-seven  million  of  common  and  preferred  stock,  and 
an  indebtedness  exceeding  one  hundred  million  of  dollars, 
secured  and  unsecured.  The  court  need  not  have  troubled 
itself  over  the  difl&cul'ias  presented  in  that  case,  if  it  had  had 
the  courage  to  assume  that  the  preferred  stockholders  were  not 
entitled  to  dividends  until  the  one  hundred  million  dollars  of 
debt  were  paid.  There  is  hardly  a  railroad  company  in  the 
world  that  has  not  a  funded  debt.  Such  a  rule  would  work  an 
injustice  amounting  to  cruelty  in  many  cases.     Section  100, 


340  Hazeltine  v.  Belfast  etc.  R.  R.  Co.        [Maine, 

chapter  42,  of  the  Revised  Statutes  provides  that  savings  banks 
may  invest  their  deposits  in  the  stocks  of  any  dividend  pay- 
ing railroad  in  New  England.  How  would  the  rule  contended 
for  work  with  savings  bank  deposits  invested  in  Maine  Central 
railroad  stock,  a  company  having  three  million  six  hundred 
thousand  dollars  stock  and  eleven  million  dollars  of  indebt- 
edness; or  in  the  Boston  and  Maine,  with  a  debt  of  seven  mil- 
lion dollars;  or  in  the  Boston  and  Albany,  with  a  debt  of 
ten  million  dollars;  or,  if  we  look  out  of  New  England,  in  the 
Chicago,  Burlington,  and  Quincy  Railroad  Company,  one  of  the 
most-  reputable  companies  in  our  country,  having  more  than 
eighty  million  dollars  of  funded  indebtedness  ?  What  would 
annuities  and  life  estates  be  practically  worth  to  the  holders  of 
them  in  railroad  companies,  under  a  rule  which  allowed  no 
dividends  until  all  debts  are  paid.  The  history  of  railroad 
enterprises  teaches  us  that  the  old  liabilities  of  companies  are 
well-nigh  habitually  paid  by  the  creation  of  new  ones,  the  gen- 
eral design  being  to  lessen  the  liabilities,  which  are  represented 
in  the  construction,  by  gradual  processes. 

The  last  point  which  the  case  presents  is,  whether  the  court 
can  interfere  in  behalf  of  the  complainants.  We  think  it  can 
and  should.  The  directors  refuse  to  perform  a  duty.  They 
ignore  a  contract.  They  are  chosen  by  the  holders  of  the  com- 
mon stock,  who  are  the  majority,  and  are  hostile  to  the  interest 
of  the  complainants.  We  asserted  the  right  of  the  court  in 
the  former  case,  and  there  cited  authorities  in  support  of  it. 
Says  Morawetz,  Corporations,  sec.  280:  "Where  certain  share- 
holders are  entitled  to  privileges  which  do  not  belong  to  the 
other  members  of  the  company,  the  court  will  provide  a  remedy 
for  an  infringement  of  these  privileges  by  the  other  share-holders 
of  the  company's  agents":  See  Cook  on  Stock  and  Stockhold- 
ers, sec.  541,  and  cases.  Says  Wheeler,  J.,  in  Lake  Erie  etc. 
R.  R.  Co.  V.  NickalSf  supra:  "  When  it  comes  to  the  question  of 
using  the  profits  which  would  go  to  one  set  of  stockholders  foT 
the  benefit  of  another  set,  a  more  rigid  rule  should  be  upheld. 
The  question  becomes  more  one  of  right  to  be  determined  by 
the  law,  than  one  of  policy  to  be  determined  by  the  discretion 
of  the  directors."  When  the  resolution  of  directors  makes  an 
alteration  in  the  priorities  and  payments  provided  in  the 
memorandum  of  association,  it  is  beyond  their  power,  and 
may  be  interfered  with  by  the  court:  Ashbury  v.  Watson,  L.  R. 
30  Ch.  376.     Even  an  action  at  law  was  allowed  on  a  con- 


June,  1887.]     Hazeltine  v.  Belfast  etc.  R.  R.  Co.  341 

tract  to  make  a  dividend  of  earnings:  Bates  v.  Railroad  Co., 
49  Me.  491. 

But  has  the  court  the  power,  asks  the  learned  counsel,  to 
prevent  a  company  paying  its  debt  when  it  becomes  due? 
Not  at  all.  On  the  contrary,  the  court  would  compel  the  com- 
pany to  pay  its  debts  to  the  letter.  It  will  also  exercise  its 
power  in  a  legitimate  case  to  require  the  company  to  keep  its 
other  obligations,  legal  or  equitable.  While  the  company  does 
not  owe  a  debt  to  the  preferred  share-holders,  it  does  owe  them 
an  obligation,  founded  upon  a  contract  which  is  as  sacred  as 
any  other  contract.  If  the  company  had  not  sufficient  means 
or  credit  with  which  to  pay  its  debts  without  applying  upon 
them  the  funds  in  question,  the  funds  should  be  so  used.  But 
no  creditor  makes  opposition  to  complainant's  claim,  nor  have 
they  any  occasion  to.  The  creditors  must  be  protected,  and  so 
must  the  different  classes  of  stockholders,  according  to  their 
respective  rights.  If  the  preferred  stock  is  in  the  way  of  an 
earlier  enjoyment  of  dividends  by  the  holders  of  the  common 
stock  than  otherwise  would  have  been,  it  is  an  impediment  of 
the  company's  own  creation.  The  contract  to  pay  dividends 
on  preferred  stock  was  upon  the  sole  condition  that  net  earn- 
ings are  possessed  by  the  company.  New  conditions  cannot 
be  imposed  by  the  company  alone.     Good  faith  forbids  it. 

Finally,  what  shall  the  decree  be?  The  complainants,  ad- 
mitting that  the  mortgage  debt  should  be  paid  within  some 
reasonable  time,  which  must  from  necessity  be  somewhat 
arbitrarily  fixed,  and  adopting  the  scheme  suggested  by  the 
court  in  the  former  case,  ask  that  a  decree  be  passed  allowing 
dividends  for  the  present  and  the  future  for  such  an  amount 
semi-annually  as  will  not  deprive  the  company  of  an  oppor- 
tunity of  extinguishing  its  debt  within  the  life  of  the  lease, 
if  it  desires  to,  and  of  paying  dividends  to  the  preferred  stock- 
holders during  the  same  period.  That  would  require  a  calcu- 
lation which  a  master,  and  not  the  court,  should  make,  and 
we  are  inclined  to  the  view  that  such  an  extensive  decree  may 
not  be  expedient,  all  things  considered,  at  the  present  junc- 
ture. The  future  action  of  the  company  may  make  such  a 
comprehensive  proceeding  avoidable. 

The  limited  and  more  direct  inquiry  is,  whether  on  Janu- 
ary I,  1886,  the  company  should  have  declared  a  dividend  on 
the  preferred  stock,  requiring  therefor  the  payment  of  $1G,062. 
Wo  think,  as  between  itself  and  that  class  of  stockholders,  it 
was  possessed  of  net  earnings  enough,  which  by  its  agreement 


342  Woodman  v.  Pitman.  [Maine, 

it  had  pledged  for  that  purpose.  It  had  $22,412.32  in  its 
treasury;  it  received  $18,000  in  addition  on  May  10,  1886;  it 
had  nothing  to  pay  until  a  half-year's  interest,  $4,500,  became 
due  on  May  15,  1886. 

Bill  sustained  with  costs.     Decree  according  to  the  opinion. 


With  Rkspect  to  Ascertaining  PEorira  of  Railroad  Corporation, 
the  following  rule,  formulated  by  the  master  of  the  rolls,  appears  to  be  in 
harmony  with  the  principal  case:  "I  am  of  opinion  that  all  the  debts  of  the 
company  are  first  payabl?,  other  than  those  which,  for  want  of  a  better  ex- 
pression, may  be  called  funded  debts;  for  instance,  if  the  defendants  have 
raised  money  by  mortgage,  under  the  powers  contained  in  their  act,  for  the 
purpose  of  completing  their  line,  this  does  not  sonstitute  such  a  debt  as  can 
he  paid  off  out  of  the  profits  before  the  profits  are  divided.  But,  on  the  other 
hand,  any  debts  which  have  been  incurred,  and  which  are  due  from  the  di- 
rectors of  the  company,  either  for  steam-engines,  for  rails,  for  completing 
stations,  or  the  like,  which  ought  to  have  been  and  would  have  been  paid  at 
the  time,  had  the  defendants  possessed  the  necessary  funds  for  that  pur- 
pose, —  these  are  so  many  deductions  from  the  profits,  which,  in  my  opinion, 
are  not  ascertained  till  the  whole  of  them  are  paid ":  Corry  v.  Londonderry 
and  EnmaUlltn  Ky  Co.,  29  Beav.  272. 


"Woodman  v.  Pitman. 

[79  Maink,  456.] 

Rights  or  Traveling  upon  or  op  Harvesting  Ice  upon  a  navigable  river 
are  not  absolute  in  any  person,  but  are  public  rights,  which  belong  to 
the  whole  community;  their  enjoyment  depends  very  much  upon  first 
appropriation,  as  one  man's  possession  may  exclude  others. 

Right  to  Travel  upon  and  to  Harvest  Ice  on  navigable  rivers  are  rela- 
tive or  comparative.  Each  must  be  exercised  reasonably,  depending 
upon  the  importance  of  the  different  rights  in  different  localities,  and  the 
benefits  which  the  community  derive  therefrom. 

Legislature  has  Constitutional  Authority  to  provide  rules  regulating 
the  possession  and  cultivation  of  ice  upon  navigable  rivers,  where  the 
tide  ebbs  and  flows,  at  least  so  far  as  the  business  is  carried  on  below 
low-water  mark,  and  it  may  provide  for  the  adjustment  of  conflicting 
interests  which  may  affect  that  privilege. 

In  Absence  of  Statute,  Judicial  Authority  may  determine  the  manner 
in  which  the  privileges  of  the  possession  and  cultivation  of  ice  on  navi- 
gable rivers  may  be  best  enjoyed  by  the  public,  provided  no  violence  is 
done  to  existing  law. 

ParviLEGE  of  Harvesting  Icb  on  the  Penobscot  River  at  Bangor,  and  for 
some  distance  below,  is  incomparably  greater  than  that  of  traveling  on 
the  ice,  and  the  latter  privilege  cannot  be  set  up  to  prevent  or  abridge 
the  former  to  any  extent  whatever. 

Right  of  Travel  on  Ice  on  navigable  rivers  in  all  places  is  generally  in- 
ferior to  the  right  of  navigation.  Whether  it  can  ever  become  a  superior 
right  depends  upon  circumstances. 


June,  1887.]  Woodman  v.  Pitman.  345^ 

Harvesting  Ice  on  Navigable  Rivers  becomes  a  nuisance  only  wheo^ 
actual  injury  is  sTistained  by  the  public,  and  an  unlawful  obstruction  to- 
navigation  is  caused  thereby. 

Ice-fields  on  Navigable  Rivers,  after  being  staked,  fenced,  and  scraped, 
and,  in  some  instances,  connecting  fields  extending  across  the  river,  ara- 
so  far  the  property  of  the  appropriatof  that  an  action  will  lie  against  on*- 
who  disturbs  his  right. 

Appropriators  of  Ice  on  Navigable  Rivers  should  by  suitable  mean» 
reasonably  guard  their  fields  from  danger  to  persons  who  may  be  likely 
to  innocently  intrude  upon  them.  But  the  former  are  not  liable  for  ther 
negligence  of  the  latter,  to  which  they  do  not  contribute. 

Though  Appropriator  op  Ice  on  navigable  river  may  have  left  his  field 
unprotected  from  danger  to  a  traveler,  still  he  is  not  liable  for  an  injury- 
caused  by  the  traveler's  negligence  and  want  of  exercise  of  ordinary  care« 

Charles  P.  Stetson,  for  the  plaintiff. 
Wilson  and  Woodward,  for  the  defendants. 

By  Court,  Peters,  C.  J.  This  case  largely  depends  for  its 
solution  upon  what  may  be  the  extent  of  the  right  to  harvest 
ice  from  our  large  rivers,  compared  with  the  conflicting  right 
of  traveling  upon  such  rivers  during  the  winter  season.  This- 
is  an  interesting  topic  of  inquiry,  in  view  of  the  importance^ 
which  ice  has  lately  assumed  as  a  merchantable  commodity^ 
and  is  a  branch  upon  which  the  law  has  as  yet  hardly- 
passed  beyond  a  formative  period.  The  inexhaustible  and 
ever-changing  complications  in  humar  affairs  are  constantly^ 
presenting  new  questions  and  new  conditions,  which  the  law 
must  provide  for  as  they  arise;  and  the  law  has  expansive  andi 
adaptive  force  enough  to  respond  to  the  demands  thus  madet 
of  it,  not  by  subverting,  but  by  forming  new  combinations  and! 
making  new  applications  out  of  its  already  established  princi- 
ples, the  result  produced  being  only  "  the  new  corn  that  cometh. 
out  of  the  old  fields." 

Neither  of  the  rights  which  seem  in  conflict  in  the  presents 
case — that  of  harvesting  ice  and  that  of  traveling  upon  ther 
ice — is  absolute  in  any  person.  No  one  has  any  absolut* 
property  in  either.  They  are  derived  from  a  natural  rights 
which  all  have,  to  enjoy  the  benefit  of  the  elements,  such  a* 
air,  light,  and  water,  and  are  common  or  public  rights,  which» 
belong  to  the  whole  community.  In  the  Roman  law,  they 
were  classified  as  "imperfect  rights."  Not  that  all  person* 
can  or  do  enjoy  the  boon  alike.  Much  depends  upon  first 
appropriation.  One  man's  possession  may  exclude  others- 
from  it.  Says  Blackstone,  2  Com.  14:  "These  things,  so- 
long  as  they  remain  in  possession,  every  man  has  a  right  to- 


344  Woodman  v.  Pitman.  [Maine, 

-enjoy,  without  disturbance;  but  if  once  they  escape  from  his 
•custody,  or  he  voluntarily  abandons  the  use  of  them,  they  re- 
turn to  the  common  stock,  and  any  man  else  has  an  equal 
Tight  to  seize  and  enjoy  them  afterwards."  They  are  the  sub- 
jects of  qualified  property  by  occupation:  2  Kent's  Com.  348. 

Each  right  is,  in  theory,  speaking  generally,  relative  or 
■comparative.  Each  recognizes  other  rights  that  may  come  in 
its  way.  Each  must  be  exercised  reasonably.  And  what 
would  be  a  reasonable  exercise  of  the  one  or  the  other  at  any 
particular  place — for  clearly  there  would  be  a  difference  in 
the  relative  importance  of  the  diflferent  rights  in  different  lo- 
calities— depends  in  a  large  degree  upon  the  benefits  which 
the  community  derive  therefrom.  The  public  wants  and  ne- 
'Cessities  are  to  be  considered.  The  two  kinds  of  franchises 
belong  to  the  people  at  large,  are  owned  in  common,  and  the 
•common  good  of  all  must  have  a  decisive  weight  on  the  ques- 
tion of  individual  enjoyment. 

These  and  all  other  public  rights,  and  the  relation  that 
shall  subsist  between  them,  when  not  thereby  trenching  upon 
congressional  jurisdiction,  may  be  regulated  by  the  legislature. 
The  legislature  is  the  trustee  of  the  public  rights  for  the  peo- 
ple. And  as  such  agent  or  trustee,  the  legislature  of  this  state 
lias  gone  a  great  way  in  abridging  an  individual  enjoyment  of 
fiome  of  the  common  rights  and  privileges  possessed  by  society, 
when  the  legislation  has  presumably  inured  to  the  common 
good.  It  authorized  the  changing  of  the  channel  of  Saco 
Kiver,  although  the  effect  of  the  diversion  was  to  impair  the 
Talue  of  a  good  deal  of  private  property:  Spring  v.  Russell,  7 
Me.  273;  has  allowed  private  interests  to  be  subserved  to  the 
injury  of  other  private  interests,  by  permitting  dams  and  mills 
to  be  erected  which  prevented  the  flow  and  ebb  of  the  tide, 
tipon  the  ground  that  the  public,  as  a  whole,  were  to  be  bene- 
£ted  thereby:  Parker  v.  Cutler  Milldam  Co.,  20  Id.  353;  37 
Am.  Dec.  56;  has  granted  to  a  single  individual  the  exclu- 
«ive  right  of  navigating  Penobscot  River  above  the  tide  with 
..steamers  for  a  period  of  twenty  years,  for  the  consideration  of 
improvements  to  be  made  in  the  navigation  of  the  river  by 
the  grantee:  Moor  v.  Veazie,  31  Me.  360;  32  Id.  343;  14  How. 
-568;  52  Am.  Dec.  655.  These  are  illustrations  of  the  legisla- 
tive power  in  such  matters. 

The  legislature  has  the  constitutional  authority,  no  doubt, 
to  provide  rules  regulating  the  possession  and  cultivation  of 
the  ice-fields  upon  our  navigable  rivers,  where  the  tide  ebbs 


June,  1887.]  Woodman  v.  Pitman.  345 

and  flows;  at  all  events,  so  far  as  the  business  is  carried  on 
below  low-water  line,  and  for  the  adjustment  of  conflicting 
interests  which  may  afiect  that  privilege.  If  it  omits  to  do  so, 
such  matters  necessarily  become  the  subjects  of  judicial  inter- 
pretation. While  the  judicial  is  not  co-extensive  with  the 
legislative  jurisdiction  upon  the  questions,  there  can  be  no 
doubt  that  it  is  within  the  scope  of  judicial  authority  to  deter- 
mine the  manner  in  which  such  public  privileges  may  be  best 
enjoyed  by  the  public,  provided  that  any  judicial  regulation 
which  may  be  attempted  shall  do  no  violence  to  existing  law. 

The  law  is  subject  to  slow  and  gradual  growth.  A  remark- 
able instance  of  the  development  of  the  law  is  seen  in  the 
doctrine  unanimously  adopted  by  the  courts  in  this  country, 
that  a  river  may  be  considered  navigable,  although  not  aflected 
by  a  flow  of  the  tides  from  the  sea.  The  common  law  was 
otherwise.  Lord  Hale,  the  great  publicist,  knew  no  such  doc- 
trine. Legislation  did  not  create  it.  The  courts  felt  obliged 
to  adopt  the  interpretation,  as  a  new  application  of  an  old  rule, 
from  an  irresistible  public  necessity.  The  court  of  no  state 
has  probably  ventured  so  far  as  this  court  has,  in  maintaining 
that  small  streams  have  floatable  properties  belonging  to  the 
public  use.  Our  climate  and  forests,  together  with  the  inter- 
ests and  wants  of  the  community,  make  the  doctrine  here 
reasonable,  —  a  reasonable  interpretation  of  the  law;  while 
in  some  of  the  states,  where  less  necessity  for  the  doctrine  ex- 
ists, it  is  considered  by  their  courts  to  be  untenable  as  sub- 
versive of  private  rights.  So  in  handling  the  somewhat  novel 
and  important  questions  now  pending  before  us,  we  are  cer- 
tainly at  liberty  to  construct  out  of  admitted  legal  principles 
such  reasonable  rules  as  will  meet  the  requirements  of  the 
case. 

The  importance  to  the  public  of  the  ice  privileges  within 
the  territory  before  named  is  incomparably  greater  than  is 
that  of  traveling  on  the  ice.  Winter  river-roads  are  of  much 
less  consequence  at  the  present  day  than  formerly.  In  the 
earlier  days,  the  natural  ways  were  the  only  ways  for  travel, 
and  upon  the  large  ponds  and  lakes  and  upon  the  rivers  in 
remote  places,  the  same  necessity  may  even  now  exist.  But 
at  Bangor,  and  for  some  distance  below,  the  principal  area  of 
Penobscot  River  from  which  the  ice  cuttings  have  been  for 
some  years  customarily  taken,  the  public  have  no  need  of  a 
way  on  the  ice.  The  traveler  receives  much  more  than  an 
equivalent  for  any  deprivation  of  the  natural  passage,  in  the 


346  Woodman  v.  Pitman.  [Maine, 

use  of  the  roads  on  the  banks  of  the  river,  at  all  times  kept 
passable  at  the  public  expense.  Roads  ovei  the  ice  are  rarely- 
suitable  and  passable,  —  only  occasionally  so.  The  access  to 
them  from  tjie  shores  is  difl&cult  if  not'  dangerous,  where  the 
tide,  as  it  does  here,  ebbs  and  flows.  Permission  must  be  had 
of  the  riparian  proprietor  to  cross  his  land,  to  enable  one  to 
get  to  the  river  without  being  a  trespasser.  The  inconveni- 
ences render  the  privilege  nearly,  if  not  quite,  worthless.  Nor 
is  any  considerable  use  of  the  river  for  such  purpose  proved  or 
suggested. 

On  the  other  hand,  the  business  of  gathering  ice  for  mer- 
chantable purposes  has  assumed  extraordinary  importance  on 
our  rivers.  Large  amounts  of  capital  are  invested;  thousands 
of  men  and  of  teams  are  employed  at  a  season  of  the  year 
when  other  employment  cannot  be  obtained  by  them;  the 
outlay  is  mostly  in  bills  for  labor,  widely  circulated;  a  crop 
of  immense  value  is  annually  produced  from  an  exhaustless 
soil  without  sowing;  the  shipping  business  is  materially  aided 
by  it;  the  wealth  of  the  state  is  greatly  increased  by  it;  it  is 
eminently  a  business  of  the  people.  It  would  seem  unrea- 
sonable to  embarrass  such  an  important  enterprise  by  accord- 
ing to  the  traveling  public  a  paramount  right  of  passage,  when 
such  right,  even  to  its  possessor,  is  scarcely  good  for  anything. 

It  is  an  error,  we  think,  to  invest  the  right  of  passing  on  the 
ice  in  all  places  with  the  same  degree  of  importance  as  that 
which  attaches  to  the  right  of  vessels  in  navigable  waters. 
It  may  be  an  offshoot  of  the  navigable  right, — something 
akin  to  it, — but  a  right  of  a  secondary  or  inferior  degree. 
The  idea  of  roads  over  the  frozen  surface  of  rivers  was  never 
broached  in  the  old  common  law, — it  has  grown  up  since, — 
and  should  be  the  superior  right  or  not,  according  to  circum- 
stances. We  know  of  only  one  judicial  decision  touching  the 
subject,  that  in  our  own  state,  French  v.  Camp,  18  Me.  433; 
36  Am.  Dec.  728;  and  that  does  not  contradict  the  views  we 
express  in  this  discussion.  There  the  plaintiflf's  injury  came 
from  the  defendant's  carelessness  in  cutting  a  hole  through 
the  ice,  and  leaving  it  exposed  upon  or  near  a  place  where 
there  had  been  a  winter  road  for  more  than  twenty  years. 
Weston,  C.  J.,  there  says:  "Assuming  that  the  defendant  has 
as  good  a  right  to  the  use  of  the  water  as  the  plaintiff  or  the 
public  generally  had  to  the  right  of  passage,  the  use  of  a 
common  privilege  should  be  such  as  may  be  most  beneficial 
and  least  injurious  to  all  who  have  occasion  to  avail  them- 


June,  1887.]  Woodman  v.  Pitman.  347 

selves  of  it."  In  the  present  case,  it  must  be  remembered, 
the  defendants  are  not  defending  themselves  as  riparian 
owners,  for  that  would  justify  their  possession  only  to  low- 
water  line,  but  as  a  portion  of  the  public,  partaking  of  a  com- 
mon and  public  right:  Brastow  v.  Roclport  Ice  Co.,  77  Me.  100. 

An  unlawful  obstruction  to  navigation,  being  a  common 
nuisance,  is  remedial  by  indictment  or  by  abatement;  or  a 
court  of  equity  may  take  jurisdiction  upon  an  information 
filed  by  an  attorney-general:  Gould  on  Waters,  sec.  121.  It 
would  seem  strange  to  see  the  ice  harvesters  accused  of  nui- 
sance. But  nuisance  exists  in  lawful  business  only  where 
actual  injury  is  sustained.  It  must  be  some  essential  injury 
and  damage.  "  People  living  in  cities  and  large  towns  must 
submit  to  some  annoyance,  to  some  inconvenience,  to  some 
injury  and  damage;  must  even  yield  a  portion  of  their  rights 
to  the  necessities  of  business":  Wood  on  Nuisance,  11.  In 
an  English  case,  it  was  said:  "Where  great  works  are  carried 
on,  which  are  the  means  of  developing  the  national  wealth, 
persons  must  not  stand  on  extreme  rights,  and  bring  actions 
for  every  petty  annoyance":  St.  Helens  Smelting  Co.  v.  Tip- 
ping, 11  Jur.  785,  reported  in  116  Eng.  Com.  L.  1093.  In 
Ehoades  v.  Otis,  33  Ala.  578,  73  Am.  Dec.  439,  a  much-quoted 
case,  the  test  of  the  floatability  of  a  stream  was  heid  to  be, 
whether  fit  for  valuable  floatage  and  useful  to  important  pub- 
lic interests.  In  Wethersjield  v.  Humphrey,  20  Conn.  218,  it 
was  held  that,  in  order  to  make  a  stream  navigable,  "  there 
must  be  some  commerce  and  navigation  upon  it  which  is  es- 
sentially valuable":  Wethersjield  v.  Humphrey,  22  Id.  198. 
Navigators  must  endure  inconveniences  for  the  greater  gen- 
eral good:  Brown  v.  Town  of  Preston,  38  Id.  219.  To  consti- 
tute nuisance,  the  obstructions  must  materially  interrupt 
general  navigation:  State  v.  Wilson,  42  Me.  9.  In  Roxce  v. 
Granite  Bridge  Co.,  21  Pick.  344,  347,  Shaw,  C.  J.,  said:  "But 
in  order  to  have  this  character,  it  must  be  navigable  to  some 
purpose  useful  to  trade  or  agriculture."  In  Attomey-Oeneral 
V.  Woods,  108  Mass.  436,  11  Am.  Rep.  380,  it  is  said  that  this 
language  is  applied  to  the  capacity  of  the  stream  rather  than 
to  its  uses.  But  the  last  was  a  case  where  the  oflBcers  of  the 
commonwealth  were  endeavoring  to  prevent  an  act  supposed 
to  injuriously  affect  the  harbor  of  Boston. 

It  is  our  opinion  that  any  occupation  of  the  Penobscot 
River,  within  the  limits  now  receiving  our  attention,  for  the 
purpose  of  a  winter  way,  would  be,  at  this  day,  of  such  insig- 


348  Woodman  v.  Pitman.  [Maine, 

nificant  importance,  so  useless  and  valueless  in  comparison 
with  other  public  interests,  that  it  cannot  be  set  up  to  prevent 
or  abridge  the  taking  of  ice  within  those  limits  to  any  extent 
whatever. 

We  do  not,  however,  apply  the  rule  stated  to  any  place 
where  a  way  is  commonly  used  across  the  river,  connecting 
town  or  county  roads,  or  where  a  ferry  is  established  by  law: 
R.  S.,  c.  20,  sec.  7. 

The  traveler's  right,  even  if  existing  theoretically,  does  not 
under  the  circumstances  assert  itself.  Reasonable  use  is 
practically  no  use.  The  same  public,  possessing  both  rights, 
prefer  to  abandon  the  use  of  the  one  for  the  much  more  valu- 
able use  of  the  other. 

We  are  aware  that  the  law,  in  facilitating  the  enjoyment  of 
public  rights, — and  no  private  right  is  involved  in  this  con- 
troversy,— scans  closely  the  grounds  upon  which  it  admits  the 
advantage  of  one  person  to  be  set  off  against  the  disadvantage 
of  another.  In  an  early  English  case,  Rez  v.  Russell,  6  Barn. 
&  C.  566,  an  extreme  rule  was  promulgated,  in  later  cases  not 
fully  assented  to,  that  staiths  erected  in  the  river  Tyne  should 
not  be  regarded  as  a  public  nuisance,  if  the  public  benefit  pro- 
duced by  them  countervailed  the  prejudice  done  to  individu- 
als,— the  supposed  public  benefit  being  that,  in  consequence 
of  the  erections,  coals  would  be  brought  to  the  London  market 
in  better  condition  or  for  lesser  price.  In  subsequent  cases  it 
has  been  maintained  that  the  benefit  to  be  derived  from  toler- 
ating any  impairment  of  the  navigable  convenience  must  be 
direct,  and  that  the  staiths  in  the  Tyne  were  a  remote  and  in- 
direct benefit  merely,  and  not  computable  as  a  public  benefit 
in  the  sense  of  the  term  in  which  it  should  be  used  when  con- 
sidering the  question  of  nuisance;  and  it  has  been  explained 
that  the  benefit  must  be  a  public  benefit  to  the  same  public; 
that  the  same  public,  or  some  part  of  the  public  which  suffers 
the  inconvenience,  must  also  receive  the  benefit;  that  it  must 
be  both  beneficial  and  injurious  to  the  public  using  the  same 
waters. 

A  satisfactory  explanation  of  the  doctrine  appears  in  a  dis- 
mssion  by  Hessel,  master  of  the  rolls,  in  Attorney- General  v. 
Ferry,  L.  II.  9  Ch.  423,  where  he  says:  "  Then  it  may  be  asked, 
IVhat  is  a  public  benefit?  In  my  view,  it  is  a  benefit  of  a  sim- 
ilar nature,  showing  that  on  a  balance  of  convenience  and  in- 
convenience the  public  at  that  place  not  only  lose  nothing,  but 
gain  something  by  the  erection."     In  that  case,  it  was  decided 


June,  1887.]  "Woodman  v.  Pitman.  349 

tliat  any  benefit  in  tlie  way  of  gaining  trade  to  a  single  individ- 
ual erecting  a  wharf  in  navigable  waters  was  too  remote  to  be 
held  to  be  for  the  advantage  of  the  public  generally,  when  the 
channel  intruded  upon  was  so  narrow  that  every  foot  of  it  was 
wanted  for  navigation.  In  the  opinion,  an  illustration  of  public 
benefit  is  given,  by  supposing  the  piers  of  a  bridge  to  be  placed 
in  the  middle  of  a  navigable  river,  thereby,  "  to  some  extent,  to 
a  more  or  less  material  extent,  obstructing  the  na%'igation,"  but 
the  necessity  is  great  and  the  injury  trifling.  In  that  case, 
says  the  opinion,  "it  would  be  a  benefit  that  would  counter- 
balance the  public  injury." 

Applying  the  doctrine  as  carefully  as  it  is  guarded  in  the 
cases  most  widely  differing  from  the  case  of  Eez  v.  Russell^ 
above  cited,  we  feel  assured  that  our  conclusions  are  correct  in 
sustaining  the  contention  of  the  present  defendants.  Here,  the 
ice-gather,er  and  the  traveler  belong  to  the  same  public,  have 
presumably  interests  alike,  were  using  the  same  river, — the 
same  waters, — though  in  different  ways.  The  ice-takers  were 
occupying  the  river  under  the  natural  right  of  dipping  water 
therefrom,  and  it  is  as  if  thousands  of  men  were  simultaneously 
exercising  the  right  together.  The  enterprise  directly  fosters 
the  interests  of  navigation  on  the  river.  On  the  other  hand^ 
as  we  have  before  said,  the  right  of  the  traveler,  so  far  as  per- 
taining to  the  navigation  of  the  river,  is,  under  the  circum- 
stances, at  most  a  secondary,  theoretical  right,  and  of  no  real 
and  essential  value.  Even  private  property  may  be  taken  for 
public  use  by  affording  compensation.  Here,  if  the  traveler  is 
not  allowed  the  use  of  the  river,  it  is  because  more  than  com- 
pensation is  supplied  to  him  in  other  roads  provided  for  his 
use. 

We  think  the  trial  was  conducted  upon  a  too  literal  appli- 
cation of  the  principles  which  govern  the  use  of  navigable 
streams,  and  that  the  jury  were  thereby  prejudiced  against 
the  defendants  to  their  injury. 

These  views  being  accepted,  it  necessarily  follows  that  this 
portion  of  the  river  should  be  considered  as  virtually  closed 
during  the  winter  against  general  traveling.  The  whole  tract 
cut  over  must  be  constantly  beset  with  danger  to  a  traveler 
who  does  not  keep  up  an  especial  acquaintance  with  the  con- 
dition of  the  ice.  Besides,  the  ice-fields,  after  they  have  been 
staked  and  fenced  and  scraped,  and  in  some  instances  con- 
necting fields  extend  across  the  river,  have  so  far  become  the 
property  of  the  appropriator  that  an  action  would  lie  against 


350  Woodman  v.  Pitman.  [Maine, 

one  who  disturbs  his  possession:  People's  Ice  Co.  v.  Steamer 
Excelsior,  44  Mich.  229;  38  Am.  Rep.  246. 

At  the  same  time  the  appropriators  should  by  suitable 
means  reasonably  guard  their  fields  against  exposing  to  dan- 
ger persons  who  may  be  likely  to  innocently  intrude  upon 
them,  if  such  likelihood  may  be  seen  to  exist.  It  is  not  neces- 
sar}',  in  the  present  case,  to  inquire  whether  the-  defendants 
eufficiently  observed  such  caution  or  not,  inasmuch  as  we  are 
clearly  of  the  belief  that  the  plaintifiF's  servant  in  charge  of  his 
team  was  guilty  of  an  act  of  carelessness  which  caused  the 
plaintiff's  loss. 

Even  if  the  defendants  were  in  fault,  their  delinquency 
would  be  a  prior  act,  while  the  servant's  was  a  subsequent, 
distinct,  independent  act.  The  defendants  had  no  reason  to 
suppose  the  servant  would  go  in  the  direction  he  did,  or  be 
heedless  in  his  course  if  he  were  to  go  there.  As  some  judge 
said:  "One  man  is  not  required  to  take  another  man's  discre- 
tion in  his  keeping." 

At  all  events,  the  defendants'  act  or  omission  was  not  negli- 
gence against  the  plaintiff,  — not  an  act  which  the  plaintiff  can 
complain  of.  The  idea  is  clearly  expressed  in  2  Law  Quar. 
Rev.  (London),  p.  507:  "The  party  who  last  has  a  clear  op- 
portunity of  avoiding  the  accident,  notwithstanding  the  negli- 
gence of  his  opponent,  is  considered  solely  responsible  for  it." 
In  such  case  defendants  are  not  even  guilty  of  contributory 
negligence;  that  is,  their  negligence  does  not  in  a  legal  sense 
contribute  to  it  or  participate  in  it.  It  is  merely  a  passive 
agency,  or  condition,  or  situation,  through  or  by  which  the 
accident  happened,  —  but  no  part  of  its  real  and  controlling 
cause:  O'Brien  v.  McGlinchy,  68  Me.  552,  557. 

The  servant  was  hardly  even  a  traveler  on  the  river  in  the 
ordinary  sense  of  the  term.  He  was  himself  an  operative  at 
the  ice-fields.  He  came  with  his  team  upon  the  ice  by  cross- 
ing defendants'  land,  striking  a  traveled  way  which  led  upon 
the  ice,  along  the  shore,  up  to  the  field  of  operations  he  was  to 
engage  in.  From  a  freak  of  his  own,  instead  of  keeping  the 
road,  as  properly  he  should,  he  crossed  one  of  defendants' 
fields,  as  properly  he  should  not,  and  while  attempting  to  go 
across  or  around  another  field  of  theirs,  his  team  broke  through 
the  ice  and  was  lost. 

The  pretense  is  set  up  that  the  defendants  had  no  fence  as  a 
protective  barrier  at  the  end  of  the  field  extremest  from  the 
west  bank  of  the  river,  to  prevent  the  traveler  from  going  upon 


June,  1887.]  Woodman  v.  Pitman.  35 J 

the  thin  ice.  None  was  needed.  The  exercise  of  ordinary  care 
by  the  servant  was  all  that  was  needed.  There  was  a  large 
ridge  of  snow  and  ice  at  the  easterly  end  of  the  field,  several 
feet  high,  thrown  up  by  scraping  the  field  from  west  to  east  in 
preparation  for  ice-cutting.  It  seems  that  the  ice  was  left  un- 
cut and  solid  for  a  space  of  twelve  or  fifteen  feet  in  width  inside 
of  the  piles  or  ridge,  in  order  to  afibrd  space  wide  enough  for  a 
pair  of  horses  to  travel  upon  while  cutting  out  and  handling 
the  cakes  of  ice.  It  is  a  risky  track  for  any  horses,  but  what 
dangers  there  are  upon  the  track  is  incidental  to  the  business. 
The  servant  confesses  that  he  was  acquainted  with  the  mode 
of  the  business,  that  he  knew  that  the  ice  had  been  scraped 
up  to  the  ridge  of  snow,  knew  that  there  might  be  holes  and 
thin  ice  where  the  field  had  been  scraped,  knew  that  he  was 
going  upon  the  scraped  ice,  and  still  he  recklessly  under- 
took to  conduct  his  team  on  the  inside  of  the  ridge,  when  there 
was  an  abundance  of  room  to  drive  safely  outside  of  it.  By 
his  carelessness,  for  which  there  seems  to  be  no  rational  ex- 
planation, the  plaintiff's  property  was  lost. 
Motion  sustained. 


Haskell,  J.,  concurred  in  the  result  reached,  but  could  not  agree  with 
the  reasoning  of  the  court.  He  considered  the  right  of  navigation  in  public 
waters  paramount,  and  though  they  might  be  subjected  to  any  other  useful 
purpose,  though  that  use  might  temporarily  impede  navigation,  still  when 
the  use  blocked  navigation  it  must  bo  suspended  until  the  right  of  navigation 
was  exercised.  He  contended  that  frozen  navigable  rivers  were  public  higli- 
ways,  which  ordinarily  gave  the  traveler  thereon  tlie  paramount  right  of 
passage  as  incident  to  the  reasonable  enjoyment  of  his  right,  which  must  be 
exercised  in  common  with  such  uses  as  the  river,  when  frozen,  was  adapted 
to.  "  One  such  use  is  the  harvesting  of  ice,  a  use  which  may  impede  travel. 
Both  are  common  rights,  and  both  may  be  lawfully  exercised;  but  botli  can- 
not be  enjoyed  at  the  same  spot  at  the  same  time,  because  the  one  may  be 
there  destructive  of  the  other,  so  that  it  may  be  reasonable  for  that  use  giv- 
ing the  larger  public  benefit  to  restrict  other  uses  to  a  narrower  compass;  but 
it  cannot  lawfully  monopolize  the  whole  right,  to  the  utter  destruction  of  all 
other  rights. "  His  honor  acknowledged  that  the  business  of  gathering  ice 
had  become  of  great  public  benefit,  and  a  remunerative  and  useful  industry; 
■till  its  nature  necessarily  required  that  it  should  not  be  subjected  to  a  para- 
mount right  of  travel  so  as  to  destroy  its  reasonable  enjoyment.  But  as  both 
the  traveler  and  the  ice-gatherer  were  partakers  in  a  common  right,  and  as 
neither  had  such  paramount  right  as  to  permanently  and  wholly  destroy  that 
of  the  other,  both  must  exercise  his  right  reasonably  under  all  of  the  circum- 
stances. Continuing,  the  learned  jurist  said  that,  in  his  opinion,  if  the  pub- 
lic had  appropriated  a  particular  part  of  the  ice  on  a  stream  or  pond,  and 
had  worn  a  well-beaten  track  thereon,  it  would  not  be  reasonable  for  the  ice- 
harvester  to  interrupt  the  right  of  travel.  On  the  other  hand,  if  the  ice- 
gatherer  had  appropriated  and  marked  a  field  of  ice.  leaving  room  for  travel. 


352  Woodman  t;.  Pitman.  [Maine^ 

it  would  not  be  reasonable  for  the  travt^^er  to  go  upon  the  field  and  defile  the 
ice;  that  both  uses  were  lawful,  but  neither  must  exclude  the  other.  And 
he  further  says:  "  Both  cannot  have  the  possession  and  use  of  the  same  ice  for 
different  purposes,  although  both  have  a  common  right  to  it  so  long  as  it  re- 
mains unappropriated  by  either.  The  taker  of  water  from  a  stream  may  not 
interfere  with  the  navigation  of  it;  but  the  harvester  of  ice  obstructs  the 
public  highway  at  that  place,  so  the  one  can  no  more  take  the  whole  ice,  and 
destroy  the  public  highway,  than  the  other  without  legislative  authority 
could  divert  the  stream,  and  leave  its  bed  dry  and  unnavigable.  Courts  may 
declare  the  relative  rights  of  persons,  but  they  cannot  extinguish  them." 

In  conclusion,  the  judge  says  that  "the  plaintifi^'s  servant  had  no  need  to 
enter  upon  the  defendant's  ice-field,  and  he  is  chargeable  with  notice  of  the 
dangerous  character  of  the  spot;  and  for  his  imprudence  in  so  doing,  the 
plaintiff  is  not  entitled  to  recover. " 

loK  —  Right  to  Travel  upon.  — The  right  of  the  public  to  pass  over  the 
surface  of  navigable  rivers  when  the  latter  are  covered  with  ice  does  not  seem 
to  have  been  the  subject  of  judicial  investigation  to  any  great  extent,  and 
no  case  is  found  where  the  questions  arising  in  the  principal  case  have 
been  in  conflict  and  before  a  court  for  determination.  In  French  v.  Camp,  36 
Am.  Dec.  728,  defendant  claimed  the  right  to  cut  a  hole  in  the  ice  on  a  road- 
way for  the  purpose  of  watering  stock,  but  the  court  held  that  the  public 
have  the  right  to  travel  on  the  ice  on  public  rivers,  and  that  any  one  who 
cuts  a  hole  in  the  ice  in  or  near  the  traveled  way  is  liable  for  injuries  to  those 
passing  over  such  way  without  fault  on  their  part.  And  in  State  v.  Wilson, 
42  Me.  9,  where  the  defendant  erected  a  wharf  on  the  shore  of  a  navigable 
river,  it  was  held  that  the  use  of  the  shore  as  a  way  of  travel  was  a  right  pos- 
sessed by  the  public  which  the  owner  of  the  shore  could  not  abridge;  that 
when  the  river  was  covered  by  ice  the  right  remained  the  same,  and  might 
be  exercised  at  pleasure.  In  Massachusetts  it  is  held  that  ponds  containing 
more  than  ten  acres  are  public  property,  and  that  all  who  own  land  adjoining 
them,  or  can  gain  access  to  them  without  becoming  trespassers,  have  the  right 
of  travel  thereon,  so  long  as  they  do  not  interfere  with  their  reasonable  use 
by  others  or  the  public,  except  when  the  legislature  has  provided  otherwise: 
Inhabitants  of  West  Roxbicry  v.  Stoddard,  7  Cush.  158. 

Id.  — Right  of  Ownership  in:  Lorman  v.  Benson,  77  Am.  Dec.  435;  Wood 
v.  Fowler,  40  Am.  Rep.  330;  Village  of  Brooklyn  v.  Smith,  44  Id.  90;  Brook- 
ville  etc.  Co.  v.  Butler,  46  Id.  580,  containing  a  discussion  of  many  cases  on  the 
subject;  Peopled  Ice  Co.  v.  Steamer  Excelsior,  38  Id.  246,  and  note  255-260, 
treating  the  topic.  The  late  case  of  Brastow  v.  Bockport  Ice  Co.,  77  Me.  100, 
shows  that  the  Massachusetts  rule  has  been  adopted  in  that  state;  such  rule 
briefly  stated  is,  that  ponds  containing  ten  or  more  acres  are  great  ponds, 
and  the  right  to  cut  ice  upon  them  is  a  public  right,  free  to  all.  That  in  this 
particular  the  right  of  the  riparian  owner  is  no  greater  than  that  of  every 
other  person  who  can  reach  the  pond  without  becoming  a  trespasser  upon  the 
lands  of  others.  In  support  of  this  rule,  see  Gage  v.  Steinhrauss,  131  Mass. 
222;  Rowell  v.  Doyle,  131  Id.  474.  In  those  states  where  navigable  rivers 
are  held  to  be  public  property,  the  riparian  proprietor  has  no  title  to  the  ice 
forming  in  such  streams  as  an  incident  to  his  ownership  of  the  bank,  but  the 
ice  belongs  to  the  first  appropriator,  such  appropriation  being  affected  by 
marking,  surveying,  and  staking  off  the  ice,  and  these  acts  give  sufficient  pos- 
session to  support  trespass:  Wood  v.  Fowler,  supra;  Hickey  v.  Hojzard,  3  Mo. 
App.  480.  On  the  other  hand,  where  navigable  fresh-water  streams  and 
ponds  are  not  considered  public  property,  but  the  bed  of  which  belongs  to 


Aug.  1887]     Ayer  v.  "Western  Union  Telegraph  Co        35$ 

the  riparian  proprietor,  the  ice  forming  on  the  stream  is  his  absolute  prop- 
erty, and  he  may  maintain  trespass  against  one  who  cuts  or  removes  it  with- 
out license:  Washington  Ice  Co.  v.  Shot-tall,  101  111.  46;  Brooklyn  v.  Smith,  44 
Am.  Rep.  90;  Mill  River  Mfg.  Co.  v,  SmUh,  34  Conn.  462;  Edgertonv.  Huff,  26 
In'l.  36;  State  v.  Pottmeyer,  33  Id.  402.  The  trespass  in  taking  the  ice  cannot 
ly  justified  on  the  ground  that  the  right  of  navigation  required  it,  or  that  it 
«  advantageous  thereto:  Waahin{jton  Ice  Co.  v.  Shortall,  supra. 


Ayer  v.  Western  Union  Telegraph  Company. 

r79  Maine,  498.  T 

Omission  of  Matebial  Word  ix  Transmission  of  Teleqbafhio  Mkssaob 
raises  a  presumption,  in  the  absence  of  proof  to  the  contrary,  that  tha 
mistake  resulted  from  the  fault  of  the  telegraph  company. 

Stipulation  in  Telegraph  Blanb^  that  the  company  shall  not  be  liable 
for  mistakes  or  delays  in  transmission,  delivery,  or  non-delivery  of  unre- 
peated  messages,  whether  happening  by  the  negligence  of  its  servants  or 
otherwise,  beyond  the  amount  received  for  sending  the  message,  ia  void 
as  against  public  policy. 

As  BETWEEN  Sendee  and  Innocent  Receiver  op  Telegram,  the  party 
who  selects  the  telegraph  as  means  of  communication  must  bear  any  losa 
occasioned  by  errors  in  transmission  on  the  part  of  the  telegraph  com- 
pany.    But  the  sender  can  recover  his  loss  from  such  company. 

As  between  Sender  and  Receiver  of  Telegram  in  which  an  error  is 
made  by  the  telegraph  company,  the  telegram  received  is  the  original, 
and  best  evidence  of  the  contract  binding  on  the  sender. 

Wihon  and  Woodward^  for  the  plaintiff. 

Baker^  Baker,  and  Cornish^  for  the  defendant. 

By  Court,  Emery,  J.  On  report.  The  defendant  telegraph 
corapany  was  engaged  in  the  business  of  transmitting  messages 
by  telegraph  between  Bangor  and  Philadelphia,  and  other 
points.  The  plaintiff,  a  lumber  dealer  in  Bangor,  delivered  to 
the  defendant  company  in  Bangor,  to  be  transmitted  to  his 
correspondent  in  Philadelphia,  the  following  message:  "  Will 
sell  800 M  laths,  delivered  at  your  wharf,  two  ten  net  cash. 
July  shipment.  Answer  quick."  The  regular  tariff  rate  was 
prepaid  by  the  plaintiff  for  such  transmission.  The  message 
delivered  by  the  defendant  company  to  the  Philadelphia  cor- 
respondent was  as  follows:  "Will  sell  800M  laths  delivered  at 
your  wharf  two  net  cash.  July  shipment.  Answer  quick." 
It  will  be  seen  that  the  important  word  "ten,"  in  the  state- 
ment of  price,  was  omitted. 

The  Philadelphia  party  immediately  retamed  by  telegraph 

▲M.  8t.  Rip.,  Vol.  I.  —28 


^354  Ayer  v.  Western  Union  Telegraph  Co.     [Maine, 

the  following  answer:  "Accept  your  telegraphic  offer  on  laths. 
Cannot  increase  price  spruce."  Letters  afterward  passed  be- 
tween the  parties,  which  disclosed  the  error  in  the  transmission 
of  the  plaintiff's  message.  About  two  weeks  after  the  discov- 
ery of  the  error,  the  plaintiff  shipped  the  laths,  as  per  the  mes- 
sage received  by  his  correspondent,  to  wit,  at  two  dollars  per  M. 
He  testified  that  his  correspondent  insisted  he  was  entitled  to 
the  laths  at  that  price,  and  they  were  shipped  accordingly. 

The  defendant  telegraph  company  offered  no  evidence  what- 
ever, and  did  not  undertake  to  account  for  or  explain  the  mis- 
take in  the  transmission  of  the  message.  The  presumption 
therefore  is,  that  the  mistake  resulted  from  the  fault  of  the 
telegraph  company.  We  cannot  consider  the  possibility  that 
it  may  have  resulted  from  causes  beyond  the  control  of  the 
•company.  In  the  absence  of  evidence  on  that  point,  we  must 
lassume  that  for  such  an  error  the  company  was  in  fault:  Bart- 
lett  V.  Tel.  Co.,  62  Me.  221;  16  Am.  Rep.  437. 

The  fault  and  consequent  liability  of  the  defendant  company 
being  thus  established,  the  only  remaining  question  is  the 
extent  of  that  liability  in  this  case.  The  plaintiff  claims  it 
extends  to  the  difference  between  the  market  price  of  the  laths 
.and  the  price  at  which  they  were  shipped.  The  defendant 
•claims  its  liability  is  limited  to  the  amount  paid  for  the  trans- 
mission of  the  message.  It  claims  this  limitation  on  two 
grounds: — 

1.  The  company  relies  upon  a  stipulation  made  by  it  with  the 
plaintiff,  as  follows:  "All  messages  taken  by  this  company 
are  subject  to  the  following  terms:  to  guard  against  mistakes 
or  delays,  the  sender  of  a  message  should  order  it  repeated; 
that  is,  telegraphed  back  to  the  originating  oflSce  for  compari- 
son. For  this,  one  half  the  regular  rate  is  charged  in  addi- 
tion. It  is  agreed  between  the  sender  of  the  following  message 
and  this  company  that  the  said  company  shall  not  be  liable  for 
mistakes  or  delays  in  the  transmission,  or  delivery,  or  for  non- 
delivery of  any  unrepeated  message,  whether  happening  by 
negligence  of  its  servants  or  otherwise,  beyond  the  amount 
received  for  sending  the  same."  This  is  the  usual  stipulation 
printed  on  telegraph  blanks,  and  was  known  to  the  plaintiff, 
and  was  printed  at  the  top  of  the  paper  upon  which  he  wrote 
and  signed  his  message.  He  did  not  ask  to  have  the  message 
repeated. 
.,  Is  such  a  stipulation  in  the  contract  of  transmission  valid 


Aug.  1887.]     Ayer  v.  Western  Union  Telegraph  Co.       355 

as  a  matter  of  contract  assented  to  by  the  parties,  or  is  it  void 
as  against  public  policy?    We  think  it  is  void. 

Telegraph  companies  are  quasi  public  servants.  They  re- 
ceive from  the  public  valuable  franchises.  They  owe  the  pub- 
lic care  and  diligence.  Their  business  intimately  concerns 
the  public.  Many  and  various  interests  are  practically  de- 
pendent upon  it.  Nearly  all  interests  may  be  affected  by  it. 
Their  negligence  in  it  may  often  work  irreparable  mischief  to 
individuals  and  communities.  It  is  essential  for  the  public 
good  that  their  duty  of  using  care  and  diligence  be  rigidly 
enforced.  They  should  no  more  be  allowed  to  effectually 
stipulate  for  exemption  from  this  duty  than  should  a  carrier 
of  passengers,  or  any  other  party  engaged  in  a  public  business. 

This  rule  does  not  make  telegraph  companies  insurers.  It 
does  not  make  them  answer  for  errors  not  resulting  from  their 
negligence.  It  only  requires  the  performance  of  their  plain 
duty.  It  is  no  hardship  upon  them.  They  engage  in  the 
business  voluntarily.  They  have  the  entire  control  of  their 
servants  and  instruments.  They  invite  the  public  to  intrust 
messages  to  them  for  transmission.  They  may  insist  on  their 
compensation  in  advance.  Why,  then,  should  they  refuse  to 
perform  the  common  duty  of  care  and  diligence  ?  Why  should 
they  make  conditions  for  such  performance?  Having  taken 
the  message  and  the  pay,  why  should  they  not  do  all  things 
(including  the  repeating)  necessary  for  correct  transmission? 
Why  should  they  insist  on  special  compensation  for  using  any 
particular  mode  or  instrumentality  as  a  guard  against  their 
own  negligence?  It  seems  clear  to  us  that,  having  undertaken 
the  business,  they  ought  without  qualification  to  do  it  care- 
fully, or  be  responsible  for  their  want  of  care. 

It  is  true,  there  are  numerous  cases  in  other  states  holding 
otherwise,  but  we  think  the  doctrine  above  stated  is  the  true 
one,  and  in  harmony  with  the  previous  decisions  of  this  court: 
True  V.  Tel.  Co.,  60  Me.  1;  11  Am.  Rep.  156;  BaHlett  v.  Tel. 
Co.,  62  Me.  221;  16  Am.  Rep.  437. 

2.  The  defendant  company  also  claims  that  the  plaintiff  was 
not,  in  fact,  damaged  to  a  greater  extent  than  the  price  paid 
by  him  for  the  transmission.  It  contends  that  the  plaintiff 
was  not  bound  by  the  erroneous  message  delivered  by  the 
company  to  the  Philadelphia  party,  and  hence  need  not  have 
shipped  the  laths  at  the  lesser  price.  This  raises  the  question 
whether  the  message  written  by  the  sender  and  intrusted  to 


356  Ayer  17.  Western  Union  Telegraph  Co.     [Maine, 

the  telegraph  company  for  transmission,  or  the  message  writ- 
ten out  and  delivered  by  the  company  to  the  receiver  at  the 
other  end  of  the  line,  as  and  for  the  message  intended  to  be 
Bent,  is  the  better  evidence  of  the  rights  of  the  receiver  against 
the  sender. 

The  question  is  important,  and  not  easy  of  solution.  It 
would  be  hard  that  the  negligence  of  the  telegraph  company, 
or  an  error  in  transmission  resulting  from  uncontrollable 
causes,  should  impose  upon  the  innocent  sender  of  a  message 
a  liability  he  never  authorized  nor  contemplated.  It  would 
be  equally  hard  that  the  innocent  receiver,  acting  in  good 
faith  upon  the  message  as  received  by  him,  should,  through 
such  error,  lose  all  claim  upon  the  sender.  If  one,  owning 
merchandise,  write  a  message  offering  to  sell  at  a  certain  price, 
it  would  seem  unjust  that  the  telegraph  company  could  bind 
him  to  sell  at  a  less  price,  by  making  that  error  in  the  trans- 
mission. On  the  other  hand,  the  receiver  of  the  offer  may,  in 
good  faith,  upon  the  strength  of  the  telegram  as  received  by 
him,  have  sold  all  the  merchandise  to  arrive,  perhaps  at  the 
same  rate.  It  would  seem  unjust  that  he  should  have  no 
claim  for  the  merchandise.  If  an  agent  receive  instructions 
by  telegraph  from  his  principal,  and  in  good  faith  act  upon 
them  as  expressed  in  the  message  delivered  him  by  the  com- 
pany, it  would  seem  he  ought  to  be  held  justified,  though 
there  were  an  error  in  the  transmission. 

It  is  evident  that  in  case  of  an  error  in  the  transmission  of 
a  telegram,  either  the  sender  or  receiver  must  often  suffer  loss. 
As  between  the  two,  upon  whom  should  the  loss  finally  fall? 
We  think  the  safer  and  more  equitable  rule,  and  the  rule 
the  public  can  most  easily  adapt  itself  to,  is,  that  as  between 
sender  and  receiver,  the  party  who  selects  the  telegraph  as  the 
means  of  communication  shall  bear  the  loss  caused  by  the 
errors  of  the  telegraph.  The  first  proposer  can  select  one  of 
many  modes  of  communication,  both  for  the  proposal  and  the 
answer.  The  receiver  has  no  such  choice,  except  as  to  his 
answer.  If  he  cannot  safely  act  upon  the  message  he  receives 
through  the  agency  selected  by  the  proposer,  business  must  be 
seriously  hampered  and  delayed.  The  use  of  the  telegraph 
has  become  so  general,  and  so  many  transactions  are  based  on 
the  words  of  the  telegram  received,  any  other  rule  would  now 
be  impracticable. 

Of  course  the  rule  above  stated  presupposes  the  innocence 


Auej.  1887.]     Ayer  v.  Western  Union  Telegraph  Co.       357 

of  the  receiver,  and  that  there  is  nothing  to  cause  him  to  sus- 
pect an  error.  If  there  be  anything  in  the  message,  or  in  the 
attendant  circumstances,  or  in  the  prior  dealings  of  the  par- 
ties, or  in  anything  else  indicating  a  probable  error  in  the 
transmission,  good  faith  on  the  part  of  the  receiver  may  re- 
quire him  to  investigate  before  acting.  Neither  does  the  rule 
include  forged  messages,  for  in  such  case  the  supposed  sender 
did  not  make  any  use  of  the  telegraph. 

The  authorities  are  few  and  somewhat  conflicting,  but  there 
are  several  in  harmony  with  our  conclusion  upon  this  point. 
In  Durkee  v.  Vermont  C.  R.  R.  Co.,  29  Vt.  137,  it  was  held  that 
where  the  sender  himself  elected  to  communicate  by  telegraph, 
the  message  received  by  the  other  party  is  the  original  evi- 
dence of  any  contract.  In  Saveland  v.  Green,  40  Wis.  431, 
the  message  received  from  the  telegraph  company  was  admit- 
ted as  the  original  and  best  evidence  of  a  contract  binding  on 
the  sender.  In  Morgan  v.  People,  59  111.  58,  it  was  said  that 
the  telegram  received  was  the  original,  and  it  was  held  that  the 
sheriflf  receiving  such  a  telegram  from  the  judgment  creditor 
was  bound  to  follow  it  as  it  read.  There  are  dicta  to  the  same 
effect  in  Wilson  v.  M.  &  N.  Ry  Co.,  31  Minn.  481,  and  Howley 
v.  Whipple,  48  N.  H.  488.      . 

Telegraph  Company  v.  Schotter,  71  Ga.  760,  is  almost  a  paral- 
lel case.  The  sender  wrote  his  message:  "  Can  deliver  hundred 
turpentine  at  sixty-four."  As  received  from  the  telegraph 
company  it  read :  "  Can  deliver  hundred  turpentine  at  sixty," 
the  word  "  four "  being  omitted.  The  receiver  immediately 
telegraphed  an  acceptance.  The  sender  shipped  the  turpen- 
tine, and  drew  for  the  price  at  sixty-four.  The  receiver  refused 
to  pay  more  than  sixty.  The  sender  accepted  the  sixty,  and 
sued  the  telegraph  company  for  the  difference  between  sixty 
and  the  market.  It  was  urged,  as  here,  that  the  sender  was 
not  bound  to  accept  the  sixty,  as  that  was  not  his  offer.  The 
court  held,  however,  that  there  was  a  completed  contract  at 
sixty,  that  the  sender  must  fulfill  it,  and  could  recover  his 
consequent  loss  of  the  telegraph  company. 

It  follows  that  the  plaintiff  in  this  case  is  entitled  to  recover 
the  difference  between  the  two  dollars  and  the  market,  as  to 
laths.  The  evidence  shows  that  the  difference  was  ten  cents 
per  M. 

Judgment  for  plaintiff  for  eighty  dollars,  with  interest  from 
the  date  of  the  writ. 


358  Ayeb  v.  Western  Union  Telegraph  Co.     [Maine. 

MiSTAEB  n?  Traxsmtssion  of  Telegram  is  prima  fade  evidence  of  negli- 
gence on  the  part  of  the  company,  and  the  burden  of  proof  rests  upon  it  to 
show  itself  free  from  fault:  Western  Union  Tel.  Co.  v.  Tykr,  24  Am.  Rep. 
279,  and  note  283;  Telegraph  Co.  v.  Orisroold,  41  Id.  500;  and  see  New  York 
etc  Tel  Co.  v.  Dryhurg,  78  Am.  Dec.  338. 

Condition  in  Telbgbaph  Blank  Exebiptino  Company  from  liability 
for  errors,  legality  of,  and  liability  under:  Western  Union  Tel.  Co.  v.  Tyfer, 
24  Am.  Rep.  279,  and  note  283;  Becker  v.  Western  Union  Tel.  Co.,  38  Id. 
366;  Wmnaek  v.  Westarn  Union  Tel  Co.,  44  Id.  614;  WesUm  Union  Tel.  Co. 
V.  Blanehard,  46  Id.  480;  Hart  v.  Western  Union  Tel  Co.,  56  Id.  119;  Aiken  v. 
Western  Union  Tel  Co.,  58  Id.  210;  Wann  v.  Western  Union  Tel  Co.,  90 
Am.  Deo.  306,  and  note  899;  United  States  Tel  Co.  v.  Oildersleve,  96  Id.  519, 
note  629. 


CASES 


IN    TWIt 


COUBT    OF   APPEALS 


ow 


MARYLAND. 


OoMBs  V.  Combs, 

[67  Mabtland,  11.J 

WoED9  "Die  wiTHOirr  Issue  of  his  Bodt  Lawtttlly  Bbootten,"  iir 
Will,  must  be  construed  to  mean  a  definite  failure  of  issue,  and  will 
support  a  limitation  over,  if  other  words  in  the  will  do  not  prevent  this 
result. 

Devise  to  Pekson  and  Heirs  of  his  Body  Lawfully  Begotten,  with 
Full  Poweb  and  authority  to  sell  and  convey  the  estate  devised  in  his 
lifetime,  or  to  dispose  of  it  by  last  will  and  testament,  gives  to  the 
devisee  an  absolute  and  unqualified  fee  which  is  not  determinable  on 
any  event  whatsoever,  and  a  limitation  over  in  such  case  is  void,  because 
it  is  inconsistent  with  the  absolute  property  given  to  the  devisee  first 
named. 

EzECDTOBY  Devise  may  be  Limited  afteb  Fee-suiple;  but  in  such  casev 
the  fee  must  be  made  determinable  on  some  contingent  event.  It  must 
be  provided  that  the  fee  is  to  cease,  and  the  executory  devise  to  vest,  on 
a  contingency  that  must  happen,  if  at  all,  within  a  life  or  lives  in  beings 
and  twenty -one  years  and  a  fraction  thereafter. 

Ejectment,  brought  by  the  plaintiffs  below  as  heirs  at  lavr 
of  George  H.  Combs,  the  son  and  devisee  of  Alexander  Combs^ 
deceased,  against  James  N.  Combs,  to  recover  a  tract  of  land 
claimed  and  held  by  the  latter  under  a  devise  contained  itt 
the  will  of  the  said  Alexander  Combs,  which  devise  is  quoted 
in  the  opinion  of  the  court.  The  jury  found  for  the  plaintiffs^ 
and  the  defendant  appealed. 

Daniel  R.  Magruder,  for  the  appellant. 

Robert  0.  Coniba  and  Joseph  F.  Morgan,  for  the  appellees. 

SM 


860  Combs  v.  Combs.  [Maryland, 

By  Court,  Bryan,  J.  The  mil  of  Alexander  Combs  con- 
tained the  following  clause:  "  I  give  and  devise  all  my  estate, 
real  and  personal,  to  my  son,  George  H.  Combs,  to  him  and 
the  heirs  of  bis  body  lawfully  begotten,  with  full  power  and 
authority  to  him,  the  said  George  H.  Combs,  to  sell  and  con- 
vey the  same  in  his  lifetime,  or  to  dispose  of  the  same  by  last 
will  and  testament;  but  should  he,  the  said  George  H.  Combs, 
die  without  issue  of  his  body  lawfully  begotten,  and  without 
having  disposed  of  the  same  by  sale,  or  by  last  will  and  testa- 
ment, either  in  whole  or  in  part,  then  I  give  and  devise  my 
said  estate,  both  real  and  personal,  or  the  part  remaining  as 
above  undisposed  of,  to  my  cousins,  James  Nathaniel  Combs 
and  Thomas  B.  Price,  in  equal  portions,  share  and  share  alike, 
to  them  and  their  heirs." 

We  are  to  decide  whether  the  limitation  to  James  N.  Combs 
and  Thomas  B.  Price  is  valid.  By  virtue  of  the  act  of  1862, 
chapter  161,  the  words  of  the  will,  "die  without  issue  of  his  body 
lawfully  begotten,"  must  be  construed  to  mean  a  definite  fail- 
ure of  issue,  and  will  support  the  limitation  over,  if  other 
words  in  the  will  do  not  prevent  this  result.  The  testator 
gives  his  estate  to  his  son  George,  and  the  heirs  of  his  body 
lawfully  begotten,  with  full  power  and  authority  to  sell  and 
convey  it  in  his  life-time,  or  to  dispose  of  it  by  last  will  and 
testament.  It  is  diflScult  to  see  how  the  devisee  could  have 
more  absolute  control  and  dominion  over  the  property.  Even 
if  there  had  been  no  words  of  inheritance,  and  the  estate  had 
merely  been  devised  to  George  generally  and  indefinitely,  the 
absolute  power  of  disposition  would  have  carried  the  fee: 
Benesch  v.  Clark,  49  Md.  497.  An  executory  devise  may  be 
limited  after  a  fee-simple;  but  in  such  case,  the  fee  must  be  made 
<ieterminable  on  some  contingent  event.  It  must  be  provided 
that  the  fee  is  to  cease,  and  the  executory  devise  to  vest,  on  a 
contingency,  which  must  happen,  if  at  all,  within  a  life  or 
lives  in  being,  and  twenty-one  years  and  a  fraction  thereafter. 
In  the  case  before  us,  the  fee  given  to  George  is  absolute  and 
unqualified,  and  is  not  determinable  on  any  event  whatsoever. 
In  Ide  V.  Ide,  5  Mass.  500,  Chief  Justice  Parsons,  in  speaking 
of  a  similar  case,  said:  "Whenever  it  is  the  clear  intention  of 
the  testator  that  the  devisee  shall  have  an  absolute  property 
in  the  estate  devised,  a  limitation  over  must  be  void,  because 
it  is  inconsistent  with  the  absolute  property  supposed  in  the 
first  devisee.  And  a  right  in  the  first  devisee  to  dispose  of 
the  estate  devised  at  his  pleasure,  and  not  a  mere  power  of 


Jan.  1887.]  Combs  v.  Combs.  361 

specifying  who  may  take,  amounts  to  an  unqualified  gift." 
And  Chancellor  Kent,  in  delivering  the  unanimous  opinion  of 
the  court  of  errors  in  Jackson  v.  Robins,  16  Johns.  537,  said: 
"  We  are  obliged  to  say  that  an  absolute  ownership  or  capa- 
city to  sell  in  the  first  taker,  and  a  vested  right  by  way  of 
executory  devise  in  another,  which  cannot  be  affected  by  such 
alienation,  are  perfectly  incompatible  estates,  and  repugnant 
to  each  other,  and  the  latter  is  to  be  rejected  as  void."  Both 
of  these  great  jurists  cited  and  relied  upon  Attorney-General  v. 
Hall,  Fitzg.  314,  decided  by  Lord  Chancellor  King,  assisted 
by  the  master  of  the  rolls  and  Chief  Baron  Reynolds,  and 
quoted  with  approval  by  Lord  Hardwicke  in  Flanders  v.  Clark, 
1  Ves.  9.  These  assuredly  are  authorities  of  great  weight. 
We  think  that  they  ought  to  be  considered  as  settling  the 
law;  although  contrary  opinions  have  been  declared  by  some 
very  learned  courts. 

We  agree  with  the  circuit  court  in  holding  that  the  exec- 
utory devise  is  void,  and  that  on  the  death  of  Greorge  Combs 
intestate,  the  land  descended  to  his  heirs  at  law. 

Judgment  affirmed.  

CoNSTRtrcJTiON  OF  WoBDS  "DiE  WITHOUT  IssuB  ":  See  In  Matter  qf  New 
York  etc.  R'y  Co.,  69  Am.  Rep.  478;  Quackenboa  v.  Kingslarid,  55  Id.  iTi,  note 
774,  where  thia  subject  ia  discussed;  HiU  v.  HiU,  15  Id.  545;  AUender's  Lessee 
r.  Sussan,  3  Id.  171;  Presley  v.  Davis,  62  Am.  Dec.  396;  Lewis  v.  Claiborne, 
26  Id.  270. 

When  Devi^ke  Takes  Fee,  Remaindek  over  beinq  Void  foe  Repug* 
MAXCT:  See  White  v.  Crenshaw,  60  Am.  Rep.  370;  Siowell  v.  Hastings,  69  Id. 
748;  Mitchell  V.  Morse,  52  Id.  781;  Canedy  v.  J<mes,  45  Id.  777;  Henderson  v. 
Blackburn,  44  Id.  780,  note  783;  Moore  v.  Sanders,  40  Id.  703;  Bona  v.  Meier, 
29  l>\.  493;  Jones  v.  Bacon,  28  Id.  1,  note  4;  McKenzie's  Appeal,  19  Id.  525. 
But  see  Jonca  v.  Jones,  57  Id.  266;  Sttuirt  v.  Walker,  39  Id.  311.  note  318; 
Reindera  v.  Koppelmann,  30  Id.  802;  Burleigh  v.  Clough,  13  Id.  23.  An  estate 
vests  absolutely  in  the  first  taker,  when  the  gift  is  to  him  and  hia  issue,  or 
to  him  and  the  heirs  of  hia  body,  and  the  limitation  over  ia  upon  an  indefinite 
failure  of  issue:  Cleveland  v.  Havens,  78  Am.  Dec.  90;  or  where  the  limita- 
tion over  is  too  remote:  Brattle  Square  Churcli  v.  Grant,  C3  Id.  726,  note  741, 
where  other  cases  in  that  series  are  collected.  A  devise  to  one  "  in  fee-sim* 
pie  for  life  "  passes  an  estate  in  fee:  McAllister  v.  Tale,  73  Id.  119,  note  121. 
In  Texas,  where  an  estate  in  lands  is  created  by  will,  it  will  be  deemed  an 
estate  in  fee-simple,  if  a  less  estate  is  not  limited  by  express  words:  Bell 
County  v.  Alexander,  73  Id.  268,  note  276,  collecting  other  cases. 

ExECUTOKT  Devise  Limited  after  Fee,  when  Void:  See  Van  Home  v. 
Campbell,  63  Am.  Rep.  lOG;  Slaughter  v.  Slaughter,  79  Am.  Dec.  Ill,  note 
113,  where  other  cases  in  that  scries  are  collected.  A  limitation  by  way  of 
executory  devise,  which  may  not  take  effect  within  a  term  of  a  life  or  lives 
in  bemg  at  the  testator's  death,  and  twenty-one  years  and  nine  months  there- 
after, ia  void  for  remoteness:  Brattle  Square  Church  v.  Oranl,  63  Id.  725,  note 
740,  where  other  cases  are  collected. 


362  Baltimore  etc.  R.  R.  Co.  v.  Boyd.     [Maryland, 

Baltimore  and  Ohio  Kailroad  Co.  v.  Boyd. 

[67  Makyland,  82.1 
PLAIimrF  IN  TRE3PAS3  QUAKE    ClAUSUM    FrEGIT   13  NOT  BoUND    TO    GlV« 

Affirmative  Proof  that  he  has  sustained  any  particular  amount  of 
damage.  Every  unauthorized  entry  upon  the  land  of  another  is  a  tres- 
pass, which  entitles  the  owner  to  a  verdict  for  some  damages,  although 
they  may,  under  some  circumstances,  be  so  small  as  to  be  merely  nom- 
inal. 
Where  Plaintiff's  Land  has  been  CoNTTNtrousLY  and  Beneficiallt 
Occupied  by  Railroad  Company  as  the  bed  of  its  railroad  tracks,  h»  is 
entitled  to  a  reasonable,  but  a  substantial,  compensation  for  such  use,  to 
be  measured  by  what  would  be  a  fair  rental  value  for  the  groimd  so  oc- 
cupied during  the  time  covered  by  the  action,  although  he  offers  no  evi- 
dence whatever  of  any  special  damages  sustained  by  him,  or  that  he  waa 
hindered  or  obstructed  in  any  proposed  use  of  his  land  by  reason  of  the 
presence  &nd  use  of  the  railroad  tracks. 

Ilf8TBUan0N3    NOT   SUFFICIENTLY    DEFINITE,   AND  CALCULATED  TO  MISLEAD 

Jury,  ought  not  to  be  given. 

Judge  of  Trial  Court  should  Interpose  to  Restrain  Everythino 
Tending  to  Mlslead  Jury,  and  divert  their  minds  from  the  tstrict  line 
of  inquiry  with  which  they  are  charged. 

Counsel  should  never  be  PERMrrrED  to  Argue  to  Jury  against  In- 
structions of  the  court,  nor  to  indulge  in  any  line  of  argument  or  com- 
ment tending  to  induce  them  to  disregard  the  instructions  given  for  their 
government. 

If  Instructions  to  Jury  are  Ambiguous,  and  Court's  Attention  la 
Called  to  Fact,  it  is  its  duty,  at  any  stage  of  the  trial  before  the  jury 
have  acted  upon  them,  to  remove  the  ambiguity,  and  make  the  meaning 
of  the  court  plain. 

Declarations  Made  by  Counsel  while  Arguing  Question  of  Dam« 
AGES  before  a  jury  of  condemnation  of  the  property  in  question  cannot 
be  admitted  in  evidence  in  a  subsequent  action  of  trespass  quare  clausum 
/regit,  for  the  purpose  of  showing  malice  on  the  part  of  the  defendant, 
and  thereby  enhancing  the  damages. 

Pbespass  qv/ire  clausum  f  regit.     The  opinion  states  the  case. 

Hugh  L.  Bond,  Jr.,  and  John  K.  Cowen,  for  the  appellants. 

Charles  J.  Bonaparte,  for  the  appellees. 

By  Court,  Alvey,  C.  J.  The  record  now  before  us  contains 
four  appeals, — three  by  the  defendant  from  three  several  judg- 
ments against  it,  and  one  by  the  plaintiffs  from  one  of  those 
judgments. 

There  were  three  several  actions  of  trespass  quare  clausum 
/regit  brought  by  the  plaintiffs  below  against  the  defendant, 
the  Baltimore  and  Ohio  Railroad  Company,  and  by  agreement 
the  three  actions  were  tried  together,  but  a  separate  verdict 


Jan.  1887.]     Baltimore  etc.  R.  R.  Co.  v.  Boyd.  363 

was  rendered  in  each  case,  and  consequently  separate  judg- 
ments were  entered. 

The  first  of  these  cases  was  here  on  a  former  appeal,  and  is 
reported  in  63  Md.  325.  The  facts  of  that  case  are  substan- 
tially the  facts  of  all  the  present  cases,  so  far  as  the  main  ques- 
tion on  these  appeals  is  concerned;  the  only  material  difference 
being  that  the  two  last  cases  were  brought  to  cover  two  suc- 
cessive periods  of  time.  The  locus  in  quo  in  all  three  of  these 
actions  is  the  same  as  that  described  in  63  Md.  330;  and  the 
circumstances  of  the  entry  upon  and  user  thereof  by  the  de- 
fendant are  there  fully  stated.  In  that  case,  the  court  having 
determined  that  as  the  defendant's  entry  upon  and  user  of 
that  portion  of  the  lot  of  vacant  and  unimproved  ground  in 
the  city  of  Baltimore,  belonging  to  the  plaintifis,  occupied  as 
a  bed  for  the  tracks  of  its  railroad,  was  unauthorized  and 
therefore  a  wrong,  the  plaintiffs  were  entitled  to  recover  there- 
for. But  in  view  of  the  facts  then  disclosed,  this  court  held 
that  the  plaintiffs  were  not  entitled  to  recover  exemplary  dam- 
ages, there  being  no  element  of  fraud  or  malice,  or  evil  intent, 
on  the  part  of  the  defendant  in  entering  upon  and  using  the 
ground  as  it  did. 

In  the  trial  of  the  present  cases,  the  main  subject  of  contest 
was  as  to  the  proper  measure  of  damages  to  be  awarded  to  the 
plaintiffs.  At  the  request  of  the  plaintiffs,  the  court  granted 
three  prayers  as  instructions  to  the  jury  as  to  what  damages 
should  be  allowed ;  and  at  the  instance  of  the  defendant,  two 
other  prayers  were  granted  upon  the  same  subject;  but  the 
first  prayer  offered  by  the  defendant  was  refused  by  the  court. 
The  plaintiffs  excepted  to  the  instructions  given  on  the  request 
of  the  defendant,  and  the  latter  excepted  to  the  instructions 
given  at  the  instance  of  the  plaintiffs,  and  also  to  the  refusal 
to  grant  its  first  prayer.  The  rulings  upon  the  prayers  are  the 
subjects  of  the  third  bill  of  exception  taken  by  the  defendant, 
and  of  the  second  bill  of  exception  taken  by  the  plaintiffs. 

By  the  first  of  the  instructions  for  the  plaintiffs,  the  jury 
were  directed  that,  upon  finding  the  facts  enumerated,  their 
verdict  in  the  first  case  should  be  for  the  plaintiffs,  "  with  such 
damages  as  would,  in  the  judgment  of  the  jury,  amount  to  a 
fair  compensation  for  the  said  unauthorized  use  of  the  said 
tracks."  And  as  applicable  to  the  second  and  third  cases,  the 
jury  were  directed  that,  in  finding  for  the  plaintiffs,  their  ver- 
dict should  be  for  such  an  amount  as  would,  "  in  their  judg- 
ment, fully  compensate  the  plaintiffs  for  such  continued  and 


S64  Baltimore  etc.  R.  R.  Co.  v.  Boyd.     [Maryland, 

unauthorized  use  of  the  said  tracks  between  the  dates  named 
against  the  wishes  of  the  plaintiffs,  and  under  all  the  circum- 
etances  disclosed  by  the  evidence." 

By  the  first  of  the  defendant's  prayers,  which  was  refused, 
the  court  was  asked  to  instruct  the  jury  that  there  was  no 
evidence  legally  sufficient  from  which  they  could  find  that 
there  was  any  substantial  damage  or  injury  done  to  the  locua 
in  quo,  by  the  acts  of  the  defendant,  and  therefore  the  verdict 
should  be  for  nominal  damages  only.  The  court,  however, 
while  refusing  to  require  the  jury  to  find  their  verdict  for 
nominal  damages  merely,  did  instruct  them,  by  granting  the 
second  prayer  of  the  defendant,  that  if  they  found  from  the 
evidence  that  no  substantial  damage  or  injury  was  done  to 
the  plaintifi's'  lot  of  ground,  by  any  act  or  user  thereof  by  the 
defendant,  the  verdict  should  be  for  nominal  damages  only. 
We  do  not  understand  that  there  is  any  question  made  as  to  the 
propriety  of  granting  the  defendant's  third  prayer  by  the  court. 

It  clearly  appears  that  since  the  death  of  Philip  D.  Boyd, 
in  1881,  who  held  a  life  estate  in  the  premises,  the  defendant 
in  these  cases  has  been,  down  to  a  very  recent  date,  a  tort- 
feasor, in  the  use  and  continual  occupany  of  the  locus  in  quo, 
as  against  the  heirs  at  law  of  Mrs.  Clarissa  Boyd,  deceased, — 
those  heirs  being  plaintifi's  in  the  present  actions.  It  is  true, 
the  original  entry  into,  and  the  construction  and  use  of  rail- 
road tracks  over,  the  locus  in  quo,  were  all  supposed  to  be  au- 
thorized by  virtue  of  certain  condemnation  proceedings  had 
under  certain  city  ordinances  for  opening  of  streets,  but  which 
proceedings  proved  to  be  defective  and  insufficient  to  secure 
to  the  defendant  the  right  of  way  over  the  lot  of  ground  in 
question.  The  defendant,  therefore,  was  not  a  willful  wrong- 
doer. This  was  determined  by  this  court  in  the  case  reported 
in  63  Md.  325.  The  lot  of  ground  belonging  to  the  plaintifi's 
was,  and  still  remains,  uninclosed,  and  without  any  improve- 
ment thereon  whatever,  apart  from  the  railroad  tracks  placed 
there  by  the  defendant.  The  space  occupied  by  the  road  in 
passing  through  this  lot  was  very  small,  being  only  about 
eighteen  by  thirty-six  feet.  The  defendant,  since  the  decision 
of  this  case  on  the  former  appeal,  has  procured  condemnation 
of  the  right  of  way  for  its  road  through  the  lot,  and  the  in- 
quisition has  been  confirmed;  but  the  present  actions  were 
brought  for  the  repeated  trespasses  on  the  lot  from  the  time 
of  the  death  of  Philip  D.  Boyd  to  the  time  of  the  taking  of  the 
recent  inquisition  by  the  defendant. 


Jan.  1887.]     Baltimoee  etc.  R.  R.  Co.  v.  Boyd.  365 

That  the  entry  upon  and  use  of  the  land,  though  under  color 
of  right,  and  though  the  ground  was  uninclosed  and  vacant, 
was  unlawful  and  therefore  a  trespass,  admits  of  no  question 
at  dispute;  and  consequently  for  such  invasion  of  their  rights 
the  plaintiflfs  are  entitled  to  recover  some  damages  of  the  de- 
fendant. It  is  not  necessary,  in  order  to  entitle  the  plaintiffs 
to  a  verdict,  that  they  should  have  given  affirmative  proof  that 
they  had  sustained  any  particular  amount  of  damages;  for 
every  unauthorized  entry  upon  the  land  of  another  is  a  tres- 
pass, and  whether  the  owner  suffer  substantial  injury  or  not, 
he  at  least  sustains  a  legal  injury,  wliich  entitles  him  to  a 
verdict  for  some  damages;  though  they  may  under  some  cir- 
cumstances be  so  small  as  to  be  merely  nominal.  Ashhy  v. 
White,  2  Ld.  Raym.  955;  Mellor  v.  Spateman,  1  Wms.  Saund.^ 
note  2,  p.  346  a;  Taylor  v.  Henniker,  12  Ad.  &  E.  488;  Diaon 
V.  Clow,  24  Wend.  188. 

The  present  cases,  however,  we  think,  are  not  cases  for 
nominal  damages  merely.  For  though  there  is  an  entire 
absence  of  any  such  element  of  wanton  or  malicious  motive, 
or  such  reckless  disregard  of  the  rights  of  others,  in  the  com- 
mission of  the  trespass,  and  the  repetitions  thereof,  as  would 
entitle  the  plaintiffs  to  claim  punitive  or  exemplary  damages, 
yet  the  strip  of  ground  belonging  to  the  plaintiffs  has  been 
continuously  and  beneficially  occupied  by  the  defendant,  as 
the  bed  of  its  railroad  tracks,  since  the  death  of  Philip  D. 
Boyd  to  the  time  of  bringing  the  last  suit;  and  for  such  use 
of  the  land  a  reasonable,  but  a  substantial,  compensation 
ought  to  be  paid.  It  is  true,  there  is  no  evidence  whatever  of 
any  special  damages  sustained,  or  that  the  plaintiffs  were 
hindered  or  unobstructed  in  any  proposed  use  of  their  lot, 
by  reason  of  the  presence  and  use  of  the  railroad  tracks;  but 
nevertheless,  we  are  of  opinion  that  the  plaintiffs  are  entitled 
to  a  reasonable  compensation  for  the  use  of  their  land,  and 
we  think  this  is  measured  by  what  would  be  a  fair  rental 
value  for  the  ground,  occupied  as  it  has  been  for  the  time  cov- 
ered by  the  actions,  and  nothing  more.  In  such  cases  as  the 
present,  where  there  is  nothing  to  show  that  any  special  dam- 
age has  been  suffered,  the  principle  seems  to  be  established  by 
many  respectable  authorities,  that  the  plaintiff  is  entitled  to 
recover  such  compensation  as  the  use  of  the  ground  was 
worth  during  the  time  and  for  the  purpose  it  was  occupied. 
It  has  been  so  held  in  several  cases,  and  we  need  only  refer 
to  McWiltiaria  v.  Morgan,  75  HI.  473;    City  of  Chicago  v. 


366  Baltimore  etc.  R.  R.  Co.  v.  Boyd.     [Maryland, 

Huenerbein,  85  111.  594;  28  Am.  Rep.  626;  Ward  v.  Warner, 
8  Mich.  508.  And  though  the  facts  are  somewhat  dififerent, 
the  same  principle  of  compensation  was  adopted  in  the  cases 
of  Blesch  V.  Chicago  etc.  Ry  Co.,  43  Wis.  183;  Car  v.  Sheboy- 
gan etc.  R.  R.  Co.,  46  Id.  625. 

Such,  then,  being  the  proper  rule  of  damages  in  these  cases, 
the  instructions  given  at  the  request  of  the  plaintiffs  were  not 
BuflSciently  definite,  and  were  well  calculated  to  mislead  the 
jury.  They  were  certainly  susceptible  of  a  construction  that 
would  permit  the  jury  to  transcend  the  fair  rental  value  of  the 
piece  of  ground  occupied  by  the  defendant,  as  the  measure  of 
compensation  to  be  allowed;  and  that  such  was  the  understand- 
ing or  interpretation  of  these  instructions  by  the  plaintifiDs' 
<;ounsel  is  made  manifest  by  the  arguments  and  illustrations 
urged  by  him  while  addressing  the  jury,  as  reported  and  set 
•out  in  the  defendant's  fourth  and  fifth  bills  of  exception.  We 
are  therefore  of  opinion  that  there  was  error  in  granting  these 
instructions  in  the  terms  therein  employed;  and  that  there 
was  also  error  in  granting  the  second  prayer  of  the  defendant, 
but  no  error  in  refusing  the  first,  or  in  grantiog  the  third,  of 
the  defendant's  prayers. 

In  the  view  we  have  stated  of  the  measure  of  recovery  in 
these  cases,  the  questions  of  evidence  raised  by  the  first  and 
second  bills  of  exception  taken  by  the  defendant  become  quite 
immaterial,  and  it  is  unnecessary  to  express  any  opinion  in 
regard  to  them. 

With  respect  to  the  fourth  and  fifth  exceptions  taken  by  the 
defendant,  they  present  a  question  of  practice  as  to  the  right 
and  duty  of  the  trial  judge  to  interpose  to  restrain  counsel, 
who  is  alleged  to  be  indulging  in  argument  and  illustration 
before  the  jury,  unwarranted  by  the  instructions  of  the  court, 
and  which  will,  if  unrestrained,  likely  mislead  the  jury  in  the 
finding  of  their  verdict.  This  is  a  matter  that  must,  in  the 
nature  of  things,  rest  largely  in  the  discretion  of  the  trial 
court.  It  is,  however,  proper  for  us  to  say  that  no  duty  in- 
cumbent upon  the  judge  of  a  trial  court  is  more  imperative, 
nor  more  important  to  the  fair  and  orderly  administration  of 
justice,  than  that  of  interposing  to  restrain  everything  in  the 
course  of  the  trial  that  tends  to  mislead  the  jury,  and  to  divert 
their  minds  from  the  strict  line  of  inquiry  with  which  they  are 
charged.  It  is  the  function  and  duty  of  the  court,  when  called 
upon  in  the  trial  of  civil  cases  by  either  of  the  parties,  to  in- 
Btruct  the  jury  as  to  the  principles  of  law  applicable  to  the 


Jan.  1887.]     Baltimore  etc.  R.  R.  Co.  v.  Boyd.  367 

case  on  trial,  and  it  is  the  duty  of  the  jury  to  observe  and  con- 
form to  such  instruction.  Counsel  can  never  be  permitted  to 
argue  to  the  jury  against  the  instructions  of  the  court,  nor  to 
indulge  in  any  line  of  argument  or  comment  that  would  tend 
to  induce  them  to  disregard  the  instructions  given  for  their 
government.  This  is  a  matter  that  is  always  within  the  con- 
trol of  the  court:  Sowerwein  v.  Jones,  7  Gill  &  J.  335;  Bell  v. 
v.  State,  57  Md.  120.  When,  however,  the  instructions  given 
are  ambiguous,  or  susceptible  of  different  interpretations,  and 
the  attention  of  the  court  is  called  thereto,  no  matter  at  what 
stage  of  the  trial,  if  before  the  jury  have  acted  thereon,  it  at 
once  becomes  the  duty  of  the  court  to  remove  the  ambiguity, 
and  to  make  the  meaning  of  the  court  plain.  Here,  as  we 
have  shown,  the  instructions  were  indefinite,  and  were,  to  some 
extent  at  least,  open  to  the  construction  that  was  being  placed 
thereon  by  the  counsel  of  the  plaintiffs  when  he  was  inter- 
rupted by  the  adverse  counsel,  and  the  court's  attention  called 
to  what  he  was  contending  for  before  the  jury,  as  set  forth  in 
the  fifth  exception.  The  counsel  was  not  restricted  in  his  con- 
tention by  any  affirmative  action  of  the  court;  and  we  infer 
from  such  non-action  that  the  counsel,  in  urging  the  allowance 
of  a  large  and  discretionary  amount  of  damages,  was,  in  the 
opinion  of  the  court,  conforming  his  contention  to  the  instruc- 
tions given  the  jury.  We  have  said  that  the  instructions  were 
erroneously  granted;  and  whether  or  not  they  were  rightly 
construed  in  argument  before  the  jury  is  a  question  quite  im- 
material to  be  decided  for  the  retrial  of  the  cases. 

There  were  two  bills  of  exception  taken  by  the  plaintiffs. 
The  first  was  taken  to  the  refusal  by  the  court  to  admit  as  evi- 
dence, to  prove  malice  on  the  part  of  the  defendant,  certain 
declarations  or  statements  made  by  counsel  on  a  former  occa- 
sion, in  the  course  of  a  trial,  and  while  arguing  the  question 
of  damages  before  a  jury  of  condemnation  of  the  property  in 
question.  We  know  of  no  principle  or  authority,  and  have 
been  referred  to  none,  upon  which  such  declarations  of  coun- 
sel as  those  here  offered  could  be  admitted  for  the  purpose 
indicated.  We  therefore  think  the  court  was  clearly  right  in 
excluding  them. 

The  second  exception  taken  by  the  plaintiffs  was  to  the 
granting  by  the  court  of  the  second  and  third  prayers  of  the 
defendant.  As  to  the  second  prayer,  thus  excepted  to,  we 
have  said  there  whs  error;  but  as  to  the  third,  there  was  no 


Dudley  v.  Hdrst.  [Maryland, 

error,  and  therefore  no  ground  for  tbe  excepiion  to  that  in- 
struction. 

It  follows  that  the  several  judgments  entered  in  these  cases 
must  be  reversed,  and  a  new  trial  ordered. 

Judgments  reversed,  and  new  trial  awarded. 


Law  Prksumes  Damagk  from  Trespass:  See  McCormel  v.  Kibbe,  85  Am. 
Dec.  265;  AUioood  v.  Frkof,  76  Id.  567,  note  571,  where  other  cases  in  that 
series  are  collected. 

Instrpctions  having  Tendenot  to  Mislead  Jurt  should  not  bb 
Given:  See  State  v.  Benham,  92  Am.  Dec.  417;  Southern  R.  R.  Co.  v.  Ken- 
drick,  90  Id.  332,  note  344,  where  other  cases  in  that  series  are  collected. 

DuTT  OF  Court  to  Explain  Instructions:  See  Ronenbaum  v.  Weeden,  98 
Am.  Dec.  737,  note  749;  Ward  v.  Churn,  98  Id.  749,  note  761;  Peahine  v. 
Shepperson,  94  Id.  468,  note  477,  where  other  cases  in  that  series  are  col- 
lected. 

Right  and  Duty  of  Court  to  Stop  'Improper  Comments  of  Couttsel 
AT  Trial:  See  Martin  v.  State,  66  Am.  Rep.  812,  note  814,  where  this  sub- 
ject is  discussed;  Ta/t  v.  Fiske,  54  Id.  459;  CartwriglU  v.  State,  49  Id.  827; 
Cleveland  Paper  Co.  v.  Banks,  48  Id.  334,  note  336,  where  this  question  is  con- 
sidered; Union  Central  L.  I.  Co.  v.  Clwever,  38  Id.  573;  Halch  v.  Stale,  34  Id. 
751;  Coble,  v.  Coble,  28  Id.  338;  Brcnonv.  Swineford,  28  Id.  582;  note  to  Statt 
V.  White,  27  Id.  142;  Long  v.  State,  26  Id.  19;  Commonwealth  v.  ScoU,  25  Id 
87;  TuUer  v.  Talbot,  76  Am.  Dec.  695,  note  698;  Doster  v.  Bnnm,  71  Id.  153| 
St.  Martin  v.  Deanoyer,  61  Id.  494. 


Dudley  v.  Hurst. 

f67  Maryland,  44.1 
BVBRYTHIKa  BBaARDED  BY  LaW  AS  FIXTURE,  AS  BETWEEN  MORTGAOOJl  ABTD 

Mortgagee,  is  sufficiently  covered  by  a  mortgage  of  a  farm,  "together 
with  the  buildings  and  improvements  thereupon,  and  the  rights,  road- 
ways, waters,  privileges,  appurtenances,  and  advantages  thereto  belong- 
ing or  in  any  wise  appertaining. " 

Machinery  Used  in  Canning  Business  is  Fixture,  and,  as  between  the 
mortgagor  and  the  mortgagee  of  the  land  upon  which  it  is  erected,  will 
pass  to  the  latter,  where  parts  of  it  are  attached  to  the  soil  and  the  other 
parts  are  necessary  to  the  use  of  the  parts  so  attached. 

Where  Principal  Part  of  Machinery  Becomes  Fixture  by  Actual  An- 
nexation to  the  soil,  such  part  of  it  as  may  not  be  so  physically  annexed, 
but  which,  if  removed,  would  leave  the  principal  part  unfit  for  use,  and 
wonld  not  of  itself  and  standing  alone  be  well  adapted  to  general  use 
elsewhere,  is  considered  constructively  annexed. 

IwjxrNonoN  will  be  Granted  to  Owner  of  Farm  having  ok  It  Larob 
Canning  Factory  in  full  operation,  with  a  large  growing  crop  of  com 
to  be  canned,  to  prevent  a  threatened  sale  and  removal  of  the  canning 
machinery. 


March,  1887.]  Dudley  v.  Hurst.  369 

Injcrt  13   Irreparable  Which  cannot   be  Measttred  by  any  knowa 

pecuniary  standard. 
Acts  and  Declarations  op  Grantor  Sxtbseqttent  to  his  Deed  cannot  be 

received  in  evidence  to  invalidate  it. 

Appeal.     The  opinion  states  the  case. 

C.  C.  Magruder  and  Frank  H.  Stochetiy  for  the  appellants* 

William  Stanley  and  Joseph  K.  Roberts,  for  the  appellees. 

By  Court,  Stone,  J.  Thomas  Clagett  of  Weston  was  tb© 
owner  in  fee  of  a  large  tract  of  land  lying  in  Prince  Greorge's 
County,  Maryland,  containing  about  six  hundred  acres.  Upon 
this  farm  he  resided  and  had  established  a  canning  factory 
for  the  purpose  of  canning  fruits,  vegetables,  and  corn,  princi- 
pally the  latter.  In  July,  1883,  he  mortgaged  this  farm  to 
William  B.  Bowie,  This  mortgage  is  not  in  the  record,  but  we 
have  been  furnished  with  a  certified  copy  taken  by  the  proper. 
ofiScers  from  the  records  of  Prince  George's  County. 

This  mortgage,  after  describing  and  granting  the  land  in  the 
usual  form,  goes  on  to  say:  — 

"  Together  with  the  buildings  and  improvements  thereupon, , 
and  the  rights,  roads,  ways,  waters,  privileges,  appurtenances,, 
and  advantages  thereto  belonging,  or  in  any  wise  appertain- 
ing." 

This  farm  was  sold  under  the  mortgage  and  purchased  by 
the  complainants  in  April,  1885.  They  took  possession  of  the 
farm  and  rented  it  for  the  residue  of  the  year  1885,  and  their 
tenants  continued  the  canning  business. 

In  March,  1885,  the  mortgagor,  Clagett,  executed  a  chattel 
mortgage  of  the  machinery  in  the  canning  factory  to  the  re- 
spondents, and  in  September,  1885,  the  respondents  were  about 
to  sell  the  machinery  under  the  power  of  sale  contained  in 
their  mortgage,  when  the  complainants  obtained  a  preliminary 
injunction  against  such  sale,  upon  the  ground  that  the  ma- 
chinery in  the  canning  factory  were  fixtures,  and  passed  to 
them  under  their  mortgage  of  July,  1883. 

A  good  deal  of  testimony  was  then  taken,  and  upon  the  final 
hearing  the  court  below  dissolved  the  injunction,  and  dismissed 
the  bill,  and  the  complainants  appealed  to  this  court. 

It  will  be  seen  from  this  brief  statement  of  the  case  that  the 
important  question  in  the  case  is,  whether  the  machinery  in 
the  canning  factory  passed  to  the  complainants  under  tho 
mortgage  of  July,  1883,  or  in  other  words,  whether  such  ma- 

Aji.  St.  Rfp.,  Vol.  I.  —  24 


370  Dudley  v.  Hurst.  [Maryland, 

chinery,  as  between  the  mortgagor  and  mortgagee,  were  or  were 
not  fixtures. 

The  learned  judge  who  tried  the  case  below  did  not  decide 
that  question,  but  dismissed  the  bill  upon  the  ground  that 
complainants  had  an  adequate  remedy  at  law,  even  if  this 
machinery  did  belong  to  them. 

But  if  the  machinery  had  really  become,  by  annexation, 
actual  or  constructive,  a  part  of  the  freehold,  we  entertain  no 
doubt  of  the  power  of  a  court  of  equity  to  restrain  and  prevent 
its  attempted  severance.  But  if  the  machinery  still  retained 
its  distinctive  character  as  a  personal  chattel,  it  did  not  in 
fact  belong  to  the  complainants,  but  to  the  respondents,  and 
then  the  complainants  had  no  right  to  ask  the  interposition  of 
a  court  of  equity  in  their  behalf,  and  the  bill  must  be  dis- 
missed. The  character  of  the  machinery  is  then  the  only 
question  of  importance  in  the  case. 

A  learned  author  of  a  work  on  fixtures  (Ewell)  says  there 
is  perhaps  no  other  legal  term  which  has  been  used  in  so  many 
difiering  and  often  contradictory  significations  as  the  term 
"  fixtures."  The  terra  "  fixture  "  is  generally  used  in  reference 
to  some  originally  personal  chattel,  which  has  been  actually 
or  constructively  afiixed  either  to  the  soil  itself,  or  some  struc- 
ture legally  a  part  of  such  soil. 

The  tests  by  which  a  fixture  is  determined  are  generally 
these:  1.  Annexation  to  the  realty,  either  actual  or  construc- 
tive; 2.  Adaptation  to  the  use  of  that  part  of  the  realty  with 
which  it  is  connected;  3.  The  intention  of  the  party  making 
the  annexation  to  make  the  article  a  permanent  accession  to 
the  freehold,  this  intention  being  inferred  from  the  nature  of 
the  article  annexed,  the  situation  of  the  party  making  the  an- 
nexation, the  mode  of  annexation,  and  the  purpose  for  which 
it  was  annexed:  Ewell  on  Fixtures;  Tyler  on  Fixtures;  Jones 
on  Mortgages. 

Of  these  tests  the  most  important  is  the  question  of  inten- 
tion. This  is  clearly  shown  by  the  fact  that  the  law  is  very 
different  between  landlord  and  tenant  and  mortgagor  and 
mortgagee,  —  or  what  is  the  same,  vendor  and  vendee;  many 
things  being  held  as  fixtures  between  vendor  and  vendee 
which  do  not  lose  their  character  of  personal  chattels  when 
the  question  is  between  landlord  and  tenant.  This  case  is  to 
be  governed  by  the  law  as  it  exists  between  mortgagor  and 
mortgagee,  or  vendor  and  vendee,  and  not  as  it  is  between 
landlord  and  tenant. 


March,  1887.]  Dudley  v.  Hurst.  371 

We  nave  quoted  a  portion  of  tne  mortgage  under  which  the 
appellants  claim,  not  for  the  purpose  of  showing  that  the  ma- 
chinery in  question  was  specifically  included  in  its  terms,  but 
for  the  purpose  of  showing  that  nothing  that  was  actually  or 
constructively  affixed  to  the  freehold  was  excepted  from  its 
operation.  The  mortgage  is  broad  enough,  it  will  be  seen,  to 
cover  everything  that  the  law  would,  as  between  mortgagor 
and  mortgagee,  determine  to  be  a  fixture,  and  the  question  is 
resolved  into  whether  this  machinery  is  a  *'  fixture." 

The  business  of  canning  is  a  comparatively  new  one,  and 
the  owner  of  this  farm,  Mr.  Clagett,  having  commenced  this 
business  in  1882  as  an  experiment,  and  being  satisfied  with 
the  results,  determined  to  make  it  his  permanent  business. 
The  main  part  of  the  machinery  consisted  of  a  boiler,  which 
was  placed  upon  a  brick  foundation  in  a  boiler-house  built  for 
that  purpose.  This  building  is  attached  to  the  main  building 
both  with  mortices  and  spikes.  In  order  to  remove  the  boiler, 
which  weighs  about  ten  thousand  pounds,  it  would  be  neces- 
sary to  pull  down  the  whole  boiler-house,  including  the  sills. 
There  is  connected  with  the  boilers  by  steam-pipes  a  steam- 
pump  fixed  on  a  hard-wood  foundation,  strengthened  by  heavy 
timbers  driven  into  the  ground,  and  the  foundation  is  spiked 
to  these  timbers.  Running  from  the  boiler  is  a  large  steam- 
pipe  which  is  carried  into  the  main  building  and  made  fast  to 
the  ceiling  above;  from  this  pipe  there  are  several  pipes  which 
pass  down  the  side  of  the  house  to  the  ground,  and  two  feet 
below  the  floor.  This  piping  connects  with  the  kettles,  scalder, 
etc.,  and  furnish  the  steam  for  them.  The  kettles  rest  upon 
hard- wood  foundations  two  feet  under  the  floor;  these  are  in 
the  canning-house  proper,  as  distinguished  from  the  boiler- 
house.  There  are  gasoline  pots  which  are  upon  a  stand  with 
a  brick  and  sheet-iron  foundation  under  them,  and  are  con- 
nected with  a  gasoline  tank  about  thirty  feet  from  the  main 
building,  which  tank  is  in  a  house  built  for  that  purpose 

To  remove  the  boiler  and  steam-pump,  it  would,  as  we  have 
said,  been  necessary  to  tear  down  the  boiler-house;  and  to  re- 
move the  process-kettles,  it  would  be  necessary  to  tear  up  the 
whole  floor  of  the  process-room,  which  is  the  main  portion  of 
the  building.  The  removal  would  destroy  the  piping,  which 
was  cut  to  fit  the  house;  even  the  kettles  and  tubs  could  not 
be  removed  through  the  doors,  as  they  were  put  in  before  the 
building  was  completed.  The  building  was  constructed  for 
canning  purposes  only,  and  when  so  constructed,  and  the  ma- 


872  Dudley  v.  Hurst.  [Maryland, 

chinery  placed  in  it,  the  business  was  intended  to  be  perma- 
nent. Tbe  farm  itself  furnished  the  main  portion  of  the  corn, 
fruits,  and  vegetables  canned. 

That  the  machinery  above  described,  and  which  constituted 
the  motive  power  of  the  factory,  is  a  fixture,  and  as  between 
mortgagor  and  mortgagee  passed  to  the  latter,  we  think  well 
settled.  Chancellor  Johnson,  who  seems  to  have  favored  the 
relaxation  of  the  ancient  rule  as  far  as  practicable,  in  McKim 
V.  Mason,  3  Md.  Ch.  186,  decided  that  the  motive  power  of 
a  cotton-mill,  consisting  of  boiler,  engine,  etc.,  passed  to  the 
mortgagee,  even  when  they  were  placed  upon  the  land  after 
the  mortgage  was  executed.  In  support  of  his  position,  the 
chancellor  cites  the  cases  of  Winslow  v.  Merchants^  Ins.  Co.,  4 
Met.  306;  38  Am.  Dec.  368;  Powell  v.  Monson  &  B.  M.,  3  Mason, 
459;  Farrar  v.  Stackpole,  6  Greenl.  154;  19  Am.  Dec.  201;  Voor- 
his  V.  Freeman,  2  Watts  &  S.  116;  37  Am.  Dec.  490. 

In  Kirwan  v.  Latour,  1  Har.  &  J.  289,  2  Am.  Dec.  519,  the 
matter  in  controversy  was  a  distillery,  and  Chase,  C.  J.,  said: 
"  The  case  of  vendor  and  vendee  is  diflferent  from  that  of  land- 
lord and  tenant.  In  the  latter  case,  the  law  allows  the  tenant 
to  remove  many  things  which  may  be  considered  as  fixed. 
This  is  for  the  benefit  of  trade;  and  where  a  tenant  puts  up 
anything  for  the  purpose  of  carrying  on  his  trade,  he  may  re- 
move it.  The  pumps,  cisterns,  iron  grating  and  door,  distill- 
ery, and  house  mills  passed  by  this  deed,  but  not  the  joists, 
vats,  buckets,  pickets,  and  faucets,  which  are  not  fixed  to  the 
freehold." 

Many  other  cases  might  be  cited  from  other  states  showing 
that  machinery  located  as  that  we  have  described  passes  to 
the  mortgagee,  but  it  is  hardly  necessary  to  cite  them. 

But  it  seems  to  be  intimated  in  Kirwan  v.  Latour,  above 
cited,  that  although  what  was  actually  fastened  to  the  soil 
passed  by  the  deed,  such  parts  of  the  distillery  as  were  not  so 
fixed  did  not  so  pass.  This  case  was  decided  in  1802.  But 
since  the  decision  of  that  case,  the  doctrine  of  constructive  an- 
nexation has  been  much  discussed.  From  the  general  current 
of  decisions,  the  following  principle  seems  clearly  deducible: 
That  where,  in  the  case  of  machinery,  the  principal  part  be- 
comes a  fixture  by  actual  annexation  to  the  soil,  such  part 
of  it  as  may  be  not  so  physically  annexed,  but  which,  if  re- 
moved, would  leave  the  principal  thing  unfit  for  use,  and  would 
not  of  itself,  and  standing  alone,  be  well  adapted  for  general 
use  elsewhere,  is  considered  constructively  annexed. 


March,  1887.]  Dudley  v.  Hurst.  373 

Thus  the  key  of  a  lock,  the  sail  of  a  wind-mill,  the  leather 
belting  of  a  saw-mill,  although  actually  severed  from  the  prin- 
cipal thing,  and  stored  elsewhere,  pass  by  constructive  annex- 
ation. They  must  be  such  as  go  to  complete  the  machinery, 
which  is  aflSxed  to  the  land,  and  which,  if  removed,  would 
leave  the  principal  thing  incomplete  and  unfit  for  use:  Beards- 
ley  V.  Ontario  Bank,  31  Barb.  619,  decided  in  1859;  Burnside 
V.  Twitchell,  43  N.  H.  390,  decided  in  1861. 

In  this  case  there  are  some  articles  not  actually  annexed 
to  the  soil,  such  as  crates,  capping-machines,  and  work-tables, 
but  are  essentially  necessary  to  the  working  of  the  principal 
machinery,  and  pass  by  constructive  annexation.  The  main 
machinery  would  not  be  in  working  condition  without  them, 
and  they  are  not  adapted  for  general  purposes. 

We  are  therefore  of  opinion  that  the  whole  machinery  of 
the  canning  factory  passed  under  the  mortgage  to  Bowie,  and 
consequently  to  his  vendees  under  the  mortgage  sale. 

The  remaining  question  in  the  case  is  one  of  jurisdiction, 
the  learned  judge  below  having  dismissed  the  bill  upon  the 
ground  that  it  did  not  disclose  a  case  for  the  interposition  of 
a  court  of  equity.     In  this  we  think  he  was  in  error. 

Here  was  a  large  canning  factory  in  full  operation  during 
the  canning  season,  and  with  a  large  growing  crop  of  corn  to 
be  canned.  The  season  for  canning  is  a  short  one,  and  re- 
quires many  employees  in  the  process,  as  well  as  in  caring  for 
and  gathering  the  crops  to  be  canned  where  they  are  raised 
upon  the  farm.  To  sell  and  remove  the  whole  machinery  in 
the  midst  of  the  short  canning  season  would  certainly  involve 
the  destruction  of  the  property  in  the  character  in  which  it 
was  then  and  had  been  for  some  years  held  and  enjoyed. 
The  canning-house  would  have  been  rendered  useless,  and  the 
gromng  crop  of  corn  comparatively  worthless,  the  employees' 
discharge  rendered  necessary,  and  the  ruin  of  the  tenants  car- 
rying on  the  factory  probable. 

One  of  the  grounds  laid  down  by  this  court  for  the  interpo- 
sition of  a  court  of  equity  in  Gilbert  v.  Arnold,  30  Md.  29,  is 
where  "  the  trespass  goes  to  the  destruction  of  the  property  in 
the  character  in  which  it  has  been  held  and  enjoyed."  That 
the  facts  stated,  and  the  relief  asked  in  the  bill,  fully  come  up 
to  the  standard  of  the  destruction  of  the  property  in  the  char- 
acter in  which  it  had  been  held  and  enjoyed,  we  think  there 
can  be  no  doubt.  In  Shipley  v.  Ritter,  7  Id.  408,  61  Am.  Dec. 
371,  this  court  decided  that  a  court  of  equity  would  step  in  and 


374  Dudley  v.  Hurst.  [Maryland, 

prevent  the  destruction  of  fruit  or  ornamental  trees,  upon  the 
ground  that  destruction  presented  a  case  of  irremediable  mis- 
chief going  to  the  destruction  of  the  estate  in  the  character 
in  which  it  had  been  enjoyed. 

"  If,"  says  Judge  Story,  "  the  trespass  be  fugitive,  and  tem- 
porary and  adequate  compensation  can  be  obtained  at  law, 
there  is  no  ground  to  justify  the  interposition  of  a  court  of 
equity.  But  if  the  acts  done  or  threatened  to  be  done  to  the 
property  would  be  ruinous  or  irreparable,  or  would  impair  the 
just  enjoyment  of  the  property  in  future, — if  indeed  the  courts 
of  equity  did  not  interfere  in  cases  of  this  sort,  —  there  would 
be  great  failure  of  justice  in  the  country." 

In  Scully  V.  Rose^  61  Md.  408,  this  court  granted  an  injunc- 
tion to  prevent  digging  ore  from  an  ore  bank,  upon  the  ground 
that  it  was  a  permanent  injury  to  the  property. 

But  there  is,  indeed,  another  aspect  in  which  it  may  be 
viewed.  Irreparable  injury  is  one  well-known  ground  for  an 
injunction.  An  injury  may  be  said  to  be  irreparable  when  it 
cannot  be  measured  by  any  known  pecuniary  standard.  By 
what  standard  could  a  jury  assess  and  determine  the  damage 
done  to  the  true  owner  of  the  factory  by  the  breaking  up  of 
his  business  at  that  critical  period?  Before  he  could  be  com- 
pensated, an  estimate  would  have  to  be  made  of  his  outlay, 
the  contracts  upon  which  he  was  liable,  and  his  prospective 
profits  or  losses.  How  much  of  this  could  legally  be  gone  into 
in  an  action  of  replevin  or  trespass  it  is  unnecessary  to  deter- 
mine. It  is  enough  to  say  that  under  the  circumstances  of 
this  case  we  see  no  adequate  remedy  at  law. 

It  is  not  necessary  to  refer  to  the  exceptions  to  the  evidence, 
further  than  to  say  that  the  acts  and  declarations  of  a  gran- 
tor subsequent  to  the  deed  cannot  be  heard  to  invalidate  his 
own  deed. 

The  decree  will  be  reversed,  and  the  case  remanded,  that 
the  injunction  may  be  made  perpetual. 

As  to  Joseph  K.  Roberts,  one  of  the  respondents,  the  bill 
will  be  dismissed,  as  he  appears  only  to  have  been  acting  as 
an  attorney  of  respondents  in  conducting  the  sale. 

Decree  reversed  and  case  remanded. 


Irreparablk  Injury  wpthin  Meanino  op  Law  op  Injtjnctions.  —The 
term  "irreparable  "  has  acquired  in  the  law  of  injunctions  a  meaning  which 
is  not,  perhaps,  quite  in  keeping  with  the  derivation  of  the  word  or  its  lit- 
eral signification.  There  are  injuries  incapable  of  being  repaired  which  a 
court  of  equity  does  not  regard  as  irreparable.     And  on  the  other  hand,  there 


March,  1887.]  Dudley  v.  Hurst.  375 

are  injunes  that  can  be  repaired,  which  it  Mrill,  nevertheless,  treat  as  irrep- 
arable, if  the  person  inflicting  or  threatening  them  be  insolvent  or  unable  to 
respond  in  damages.  The  rule  on  this  subject,  deduced  from  the  cases  by 
Pearson,  J.,  in  Gause  v.  Perlans,  3  Jones  Eq.  177,  69  Am.  Dec.  728,  is  thus 
stated:  "The  injury  must  be  of  a  peculiar  nature,  so  that  compensation  in 
money  cannot  atone  for  it.  Where,  from  its  nature,  it  may  be  thus  atoned 
for,  if  in  the  particular  case  the  party  be  insolvent,  and  on  that  account  un- 
able to  atone  for  it,  it  will  be  considered  irreparable."  This  is  as  accurate  a 
definition  as  any  that  has  been  given,  and  is  probably  as  definite  as  any  that 
can  be  framed.  The  question  as  to  what  is  irreparable  injury,  such  aa  to  jus- 
tify a  court  o  f  equity  in  restraining  a  trespass,  is  considered  at  length  in  the 
note  to  Jerome  v.  Rosa,  1 1  Am.  Dec.  500  et  seq.  In  the  present  note  it  is 
proposed  to  show,  generally,  what  injuries  are  and  what  are  not  considered 
to  be  irreparable  within  the  meaning  of  the  law  of  injunctions. 

Injury  that  cannot  be  Cobipensated  by  Damages  in  an  action  at  law 
\i  irreparable.  The  best  criterion  for  determining  whether  or  not  an  injury 
is  irreparable  is  this:  Can  complete  compensation  for  it  be  had  by  a  recovery 
of  damages  in  an  action  at  law?  An  injury  which  cannot  be  adequately 
compensated  by  a  verdict  for  damages  ia  generally  regarded  as  irreparable. 
And  an  injury  which  can  be  fully  compensated  by  damages  at  law  is  not 
irreparable:  Cockey  v.  Carroll,  4  Md.  Ch.  344;  Varney  v.  Pope,  60  Me.  192; 
Whitfield  V.  Rogers,  26  Miss.  84;  59  Am.  Dec.  244;  Burgess  v.  KcMleman,  41 
Mo.  480;  Wason  v.  Sanborn,  45  N.  H.  169;  Morris  Canal  dk  R.  Co.  v.  Central 
R.  R.  Co.,  16  N.  J.  Eq.  419;  Milhau  v.  Sliaiy,  27  N.  Y.  611;  84  Am.  Dec. 
314;  Mechanics^  etc.  Bank  v.  Debolt,  1  Ohio  6t.  591;  Wilson  v.  City  of  Mineral 
Point,  39  Wis.  160. 

Injury  Which  cannot  be  Measured  by  Any  Pecuniary  Standard,  or 
which  it  is  impossible  or  hardly  possible  to  measure,  is  regarded  as  irrepara- 
ble: Joyce  on  Doctrines  and  Principles  of  Injunctions,  218;  London  &  N.  W. 
R'y  Co.  V.  Lancashire  d;  Y.  R'y  Co.,  L.  R.  4  Eq.  Cas.  174;  Commonwealth  v. 
Pittsburgh  etc.  R.  R.  Co.,  24  Pa.  St.  159;  62  Am.  Dec.  372;  Piscataqua  Biidge 
V.  Neto  Hampsliire  Bndge,  7  N.  H.  35;  MilJiau  v.  Shai-p,  27  N.  Y.  611;  84 
Am.  Dec.  314;  Bumley  v.  Cook,  13  Tex.  586;  65  Am.  Dec.  79;  Wilson  v.  City 
of  Mineral  Point,  39  Wis.  160;  Manhattan  Mfg.  Co.  v.  New  Jersey  etc.  Co., 
23  N.  J.  Eq.  161.  In  the  case  of  London  tb  N.  W.  R'y  Co.  v.  Lancashire  Je 
Y.  R'y  Co.,  supra,  the  defendants  had  placed  an  obstruction  partly  on  a 
public  footway  and  partly  on  laud  belonging  to  the  plaintiffs,  a  rival  railway 
company,  so  as  to  block  up  the  access  to  a  station  of  the  plaintiffs.  The  bill 
alleged  that  the  injory  to  the  traffic  by  allowing  the  obstruction  to  remain 
would  be  irreparable,  and  that  the  act  dono  was  without  any  color  of  title  on 
the  part  of  the  defendants.  The  injunction  was  granted.  Vice-Chancellor 
Wood,  in  delivering  the  opinion  in  the  case,  said:  "It  is  one  of  those  cases 
of  irreparable  mischief  occasioned  by  a  trespasser  against  persons  in  posses- 

sion  which  require  relief  in  equity In  this  case  it  'u  impossible  to  say 

what  amount  of  traffic  will  be  lost  while  the  right  is  being  tried."  Irrepara- 
ble injury,  that  is,  the  foundation  for  intervention  by  injunction,  is  not  irrep- 
arable, because  it  ia  so  small  that  it  may  not  be  estimated,  but  because  it  ii 
likely  to  be  so  great  as  to  bo  incapablo  of  compensation  in  damages:  Rhodes 
V.  Dunfxir,  57  Pa.  St.  274;  98  Am.  Dec.  221.  The  fact  that  the  injury  is  a 
repeated  and  continuing  one,  and  cannot  for  that  reason  be  estimated  except 
by  conjecture,  will  lead  the  court  to  restrain  it  as  irreparable:  Commonwealth 
V.  PUuburyh  etc.  R.  R.  Co.,  24  Pa.  St.  159;  62  Am.  Dec.  372;  London  A  N.  W. 
R'y  Co.  V.  Lancatlurt  Je  Y.  R'y  Co.,  supra. 


376  Dudley  v.  Hurst.  [Maryland, 

Injttrt  Which  Teitds  to  Destkcction  of  Estate,  or  which  is  of  such  a 
<:haracter  as  to  work  tho  destruction  of  the  property  as  it  has  been  held  and 
enjoyed,  will  be  treated  as  irreparable:  Lowndes  v.  Bettk,  10  Jur.,  N.  8., 
226;  Hopkins  V.  Caddick,  18  L.  T.  236;  Crompton\.  Lea,  L.  R.  19  Eq.  115; 
iewfe  V.  Marsh,  8  Hare,  97;  Hervey  v.  SmitJi,  1  Kay  &  J.  389;  Powell  v. 
-AUnn,  4  Id.  343;  Mitchell  v.  Dors,  6  Ves.  147;  Erhardtv.  Boaro,  113  U.  S. 
537;  United  States  v.  Gear,  3  How.  121;  United  States  v.  Parrott,  1  McAll. 
271;  Le  Boy  v.  Wright,  4  Saw.  530;  Merced  Mining  Co.  v.  Fremont,  7  Cal.  317; 
■68  Am.  Dec.  262;  Logan  v.  Driscoll,  19  Cal.  623;  81  Am.  Dec.  90;  Mwe  v. 
Massini,  32  Cal.  590;  Ricliards  v.  Dower,  64  Id.  62;  Shipley  v.  EitUr,  7  Md. 
•408;  61  Am.  Dec.  371;  Reddall  v.  Bryan,  14  Md.  444;  74  Am.  Dec.  550; 
Gilbert  v.  Arnold,  30  Md.  29;  Mayor  etc.  of  Frederick  v.  Oroshon,  30  Id.  436; 
96  Am.  Dec.  591;  Ryan  v.  Brown,  18  Mich.  196;  Webber  v.  Gage,  39  N.  H. 
182;  Holsman  v.  Boiling  Spring  Bleaching  Co.,  14  N.  J.  Eq.  335;  West  Point 
dron  Co.  V.  ReymeH,  45  N.  Y.  703;  Bird  v.  Wilmington  cfc  M.  R.  R.  Co.,  8 
-Rich.  Eq.  46;  64  Am.  Dec.  739;  Burnley  v.  Cook,  13  Tex.  586;  65  Am.  Dec.  79. 
-In  the  case  of  Mooney  v.  Cooledge,  30  Ark.  640,  it  was  held  that  the  extend- 
ing of  a  fence  over  ground  used  by  the  plaintiffs  and  their  ancestors  as  a 
iamily  burying-place,  and  giving  notice  that  they  would  remove,  and  threat- 
■«ning  to  remove,  the  bodies  of  near  relatives  and  friends,  presented  a  case  of 
irremediable  injury  justifying  the  granting  of  an  injunction.  In  the  case  of 
Webber  v.  Gage,  39  N.  H.  182,  the  complainant  for  more  than  forty  years 
iiad  owned  and  occupied  a  saw-mill  and  lot,  with  a  way  appurtenant  thereto 
and  indispensable  to  their  enjoyment,  over  and  across  the  land  of  the  de- 
fendants. The  defendants  obstructed  and  destroyed  this  way  by  plowing  it 
up  and  removing  a  bridge  across  a  brook  constituting  a  part  thereof,  thereby 
rendering  the  mill  and  lot  entirely  useless  for  the  purposes  to  which  for  more 
than  forty  years  they  had  been  devoted.  The  injunction  was  granted.  In 
Reddall  v.  Bryan,  14  Md.  444,  74  Am.  Dec.  550,  it  was  held  that  digging 
-deep  holes  in  the  complainant's  land,  and  planting  therein  large  stone  pillars 
or  abutments,  digging  and  carrying  away  large  banks  of  valuable  clays 
therefrom,  and  constructing  an  aqueduct  by  ditches  and  embankments 
through  and  thus  permanently  dividing  the  lands,  without  authority  of  la^yv, 
would  present  a  case  of  irreparable  damage.  In  Holsman  v.  Boiling  Spring 
BleacJiingCo.,  14  N.  J.  Eq.  335,  it  was  held  that  a  disturbance  or  deprivation 
of  the  right  of  a  riparian  owner  to  the  use  and  enjoyment  of  a  stream  of 
water  in  its  natural  state  was  an  irreparable  injury  for  which  an  injunction 
would  lie.  And  where  the  injury  is  destructive  of  the  substance  of  the  estate, 
Au  injunction  will  be  granted,  although  the  title  to  the  property  is  in  litiga- 
tion. In  Erhardt  v.  Boaro,  113  U.  S.  539,  Mr.  Justice  Field,  delivering  the 
opinion  of  the  court,  said:  "  It  is  now  a  common  practice  in  cases  where  irre- 
siediable  mischief  is  being  done  or  threatened,  going  to  the  destruction  of  the 
substance  of  the  estate,  such  as  the  extracting  of  ores  from  a  mine,  or  the 
outting  down  of  timber,  or  the  removal  of  coal,  to  issue  an  injunction,  though 
the  title  to  the  premises  bo  in  litigation.  The  authority  of  the  court  is  exer- 
cised in  such  cases,  through  its  preventive  writ,  to  preserve  the  property 
from  destruction  pending  legal  proceedings  for  the  determination  of  th*) 
title." 

Removing  Minerals  from  Mines  will  be  restrained  on  the  ground  that 
the  injury  caused  thereby  is  irreparable,  where  the  minerals  constitute  the 
chief  value  of  the  property.  Such  injuries  are  held  to  be  irreparable,  because 
they  are  permanently  ruinous  to  the  property,  and  cannot  be  adequately 
•compensated  in  damages  at  law:  Cliamlers  v.  Alabama  Iron  Co.,  67  Ak,.  353; 


March,  1887.]  Dudley  v.  Hurst.  377 

Henshaio  v.  Clarlc,  14  Cal.  460;  McLavfjMin  v.  Kelly,  22  Id.  211;  Scully  v. 
Rose,  01  Md.  408;  A  Ithen  v.  Kelly,  32  Minn.  280;  West  Point  Iron  Co.  v.  Rey- 
mert,  45   N.   Y.  703;  Creaa-p  v.  Kemble,  26  W.  Va.  603;  Bracken  v.  Preston, 

1  Finn.  584;  44  Am.  Dec.  412.  Said  Allen,  J.,  delivering  the  opinion  of  the 
court  in  West  Point  Iron  Co.  v.  Peymert,  45  N.  Y.  705:  "Mines,  quarries, 
and  timber  are  protected  by  injunction,  upon  the  ground  that  injuries  to 
and  depredations  upon  them  are,  or  may  cause,  irreparable  damage. "  But  in 
Cresap  v.  Kemble,  26  W.  Va.  603,  it  was  held  that  an  injunction  to  restrain 
the  taking  of  coal  from  an  open  mine  will  not  be  granted  when  the  proof  does 
not  show  that  the  coal  constituted  the  chief  value  of  the  land. 

Cutting  down  Ornamental  or  Fruit-teees,  or  timber  necessary  fo» 
the  use  of  a  farm,  or  where  the  timber  constitutes  the  chief  value  of  the  land, 
will  be  prevented  by  injunction,  on  the  ground  that  these  are  cases  of  great 
and  irremediable  damage:  Lowndes  v.  Settle,  10  Jnr.,  N.  S.,  226;  33  L.  J.  Ch. 
451;  Daubenspeck  v.  Grear,  18  Cal.  444;  Silva  v.  Oarcia,  65  Id.  591;  Powell  v. 
Cheshire,  70  Ga.  357;  48  Am.  R«p.  572;  SJupley  v.  Bitter,  7  M(}.  408;  61  Am. 
Dec.  371;  Davis  v.  Peed,  14  Md.  152;  Seudder  v.  Trenton  D.  F.  Co.,  1  N.  J. 
Eq.  694;  23  Am.  Dec.  756;  Powers  v.  Heery,  R.  M.  Charlt.  523;  De  la  Croix 
V.  VilUere,  II  La.  Ann,  39;  Wilson  v.  City  of  Mineral  Point,  39  Wis.  160. 
In  the  case  last  cited,  Lyon,  J.,  delivering  the  opinion  of  the  court,  said: 
"No  one  will  seriously  contend  that  a  money  compensation  is  an  adequate 
remedy  for  the  loss  of  trees  and  shrubbery  which  the  complaint  avers  the 
defendants  threaten  to  destroy;  and  it  would  be  a  denial  of  justice  were  the 
courts  to  refuse  the  plaintiff  the  protection  be  asks,  and  thus  permit  hia  hnme 
to  be  despoiled. " 

Injury  not  Ikeepaeablb  when.  —  In  general,  where  there  is  a  full,  com- 
plete, and  adequate  remedy  at  law  for  an  injury,  it  is  not  irreparable.  And 
if  full  compensation  for  an  injury  can  be  obtained  by  damages  in  an  action  at 
law,  equity  will  not  apply  the  extraordinary  remedy  by  injunction:  Brooks  v. 
Diaz,  35  Ala.  599;  Ex  parte  Foster,  11  Ark.  304;  De  WiU  v.  Hays,  2  Cal.  463; 
66  Am.  Dec.  352;  Damdson  v.   Floyd,   15  Fla.   667;  Anthony  v.   Brooks, 

5  Ga.  576;  Catching  v.  Ten-ell,  10  Id.  576;  Sullivan  v.  Heamden,  11  Id.  294; 
Peterson  V.  Orr,  12  Id.  464;  Seymour  v.  Morgan,  45  Id.  201;  Fort  Clark  H. 
R'y  Co.  v.  Anderson,  108  111.  64;  48  Am.  Rep.  645;  Cooper  v.  Hamilton, 
8  Blackf.  ZTJ;.Centreville  Je  A.  T.  P.  Co.  v.  BarreU,  2  Ind.  53G;  Indianapolis  v. 
Indianapolis  etc.  Co.,  29  Id.  245;  Westbrook  Mfg.  Co.  v.  Warren,  11  Me.  437; 
SchurmeUr  v.  St.  Paul  A  P.  R.  R.  Co.,  8  Minn.  113;  83  Am.  Dec.  770; 
BasseU  v.   Salisbury  Mfg.  Co.,  47  N.   H.  426;  Quackenbush  v.    Van  Riper, 

2  Green's  Ch.  350;  29  Am.  Dec.  716;  Thorn  v.  Sweeney,  12  Nev.  251; 
Hart  V.  Mayor  etc.  of  Albany,  9  Wend.  571;  24  Am.  Dec.  165;  Ross  v.  Page^ 

6  Ohio  St.  166;  Mulvany  v.  Kennedy,  26  Pa.  St.  44;  Ricliards's  Appeal,  67  Id. 
105;  98  Am.  Dec.  202;  Brown's  Appeal,  62  Pa.  St.  22;  Clark's  Appeal,  62 
Id.  447;  Minnig's  Appeal,  82  Id.  373. 

The  following  injuries  have  been  held  not  to  be  irreparable:  Selling  intoxi- 
cating liquors  on  land  leased  by  the  plaintiff:  Bi-ooks  v.  Diaz,  35  Ala.  599; 
throwing  down  fences  and  letting  in  cattle  upon  growing  crops:  Catching  v. 
Terrell,  10  Ga.  676;  temporarily  interrupting  the  business  of  a  city  horse* 
railway  company  by  moving  a  large  house  along  the  street  over  which  such 
company  had  an  exclusive  right  of  way:  Fort  Clark  II.  R'y  Co.  v.  Anderi<on, 
108  111.  64;  48  Am.  Rep.  545;  using  more  of  the  water  of  a  stream  than 
the  defendant  was  legally  entitled  to,  thereby  depriving  the  plaintiff  of  suffi- 
cient  water  to  run  his  mill,  and  obliging  him  to  shut  down,  thus  throwing  out 
of  employment  some  two  hundred  persons:   Westbrook  Mfg  Co.  v.   Wctrren, 


378  Dudley  v.  Hurst.  [Maryland, 

77  Me.  457;  erecting  a  trestle-work  upon  which  to  run  a  railroad  about  six 
feet  above  the  level  of  the  land  in  front  of  the  plaintiff's  property:  Schur- 
meter  v.  St.  Paul  dk  P.  R.  R.  Co.,  8  Minn.  113;  83  Am.  Dec.  770;  throwing 
water  from  the  defendant's  mill-dam  upon  a  small  part  of  several  pieces  of 
swamp  land  belonging  to  the  plaintiflF,  which  had  never  been  productive  or 
brought  into  use:  Bassett  v.  Salisbury  A^j  Co.,  47  N.  H.  426;  constructing  a 
ditch  across  a  rocky,  barren,  aad  uncultivated  tract  of  land:  Tliorn  v.  Sweeney, 
12  Nev.  251;  cutting  ice  from  a  pond:  Marshall  v.  Peters,  12  How.  Pr.  218; 
landing  passengers  from  a  ferry-boat  on  the  plaintiff's  land:  Ross  v.  Page, 
8  Ohio  St.  166;  throwing  mud  on  the  plaintiff's  land:  Mulvaney  v.  Kennedy, 
26  Pa.  St.  44;  removing  from  a  hotel  a  cooking-range  and  carving-table  fas- 
tened to  the  floor:  Clark's  Appeal,  62  Id.  447;  cutting  turf  from  a  bog: 
Sandys  v.  Murray,  1  Irish  Eq.  29. 

In  the  case  of  Blaine  v.  Brady,  64  Md.  373,  the  plaintiff  sought  an  injunc- 
tion to  restrain  the  defendant  from  maintaining  an  embankment,  but  it  was 
refused.  Miller,  J.,  in  delivering  the  opinion  of  the  court,  said:  "As  to  the 
apprehension  of  future  damages,  we  find  no  facts  stated  sufficient  to  satisfy 
us  that  the  continuance  of  this  embankment  will  work  irreparable  injury  to 
the  complainant's  farm,  or  the  '  destruction  of  the  inheritance  '  in  the  sense 
in  which  these  terms  are  used  in  the  authorities.  It  is  not  stated  how  often 
in  the  past  this  stream  has  overflowed  its  banks  by  reason  of  heavy  freshets, 
nor  how  much  of  the  complainant's  land  has  been  or  is  liable  to  be  overflowed 
at  such  times,  in  consequence  of  the  embankment  made  or  threatened  to  be 
made  by  the  defendant.  There  is  a  vague  and  indefinite  statement  that  a 
'  considerable  portion  'of  it  baa  been  overflowed,  but  he  fails  to  inform  us 
how  much  he  considers  a  '  considerable  portion, '  —  whether  one  acre  or  ten. 
He  does  not  say  that  the  land  or  any  part  of  it  has  been  washed  away,  and 
all  that  we  can  infer  from  what  he  does  state  amounts  simply  to  this,  that 
when  a  heavy  freshet  may  happen  to  occur  in  this  stream  the  water  will,  if 
the  embankment  complained  of  remains,  overflow  a  portion  of  his  land,  and 
remain  on  it  till  absorbed  in  the  soil  or  evaporated,  and  that  the  crops,  if  any 
there  be  growing  thereon  at  the  time,  will  be  destroyed.  In  our  judgment, 
such  occasional  overflow  of  a  few  acres  of  land,  part  of  a  farm  of  more  thaa 
a  hundred  acres,  does  not  work  a  destruction  of  the  inheritance,  or  justify 
tlie  granting  of  an  injunction  in  order  to  prevent  irreparable  mischief.  Such 
a  case  seems  to  us  to  differ  widely  and  substantially,  not  only  in  the  facts, 
but  in  principle  from  the  destruction  of  timber  which  is  essential  to  the  use 
of  a  farm,  the  cutting  down  of  trees  which  afford  ornament  and  shade  to  a 
family  mansion,  the  obstruction  of  a  street  in  a  populous  city,  the  diverting 
of  a  watercourse  from  a  mill,  the  digging  of  ore  from  a  mine,  the  taking  of 
stones  of  a  peculiar  value,  or  the  destruction  of  an  heir-loom  or  a  work  of  art 
or  a  family  picture,  which  has  a  pretium  affectionis.  We  are  therefore  clearly 
of  opinion  the  complainant  has  failed  to  bring  his  case  within  that  class  of 
cases  in  which  the  extraordinary  remedy  by  injunction  ought  to  be  applied. " 

Plaintiff  Seeking  Injunction  on  Groitnb  of  Irreparable  Injury 
must  state  the  facts  which  go  to  show  that  the  injury  is  irreparable.  It 
is  not  sufficient  to  state,  in  general  terms,  that  the  injury  is  irreparable. 
The  question  what  damage  is  irreparable  is  one  for  the  court,  and  is  to  be  de- 
termined from  the  facts  stated  by  the  complainant.  Said  Merrimon,  J.,  in 
delivering  the  opinion  of  the  court  in  Frink  v.  Stevxirt,  94  N.  C.  486:  "It  is 
not  sufficient  to  allege  such  injury  in  general  terms:  it  must  be  done  by  such 
specific  allegations  of  facts  as  will  enable  the  court  to  see  that  such  injury 
will  or  may  happen  ":  De  WiU  v.  Hays,  2Cal.  463;  5(3  Am.  Dec.  352;  WaUlron 


March,  1887.]  Adams  v.  Beall.  37t> 

V.  Marsh,  5  Cal.  119;  Branch  Turnpike  Co.  v.  Supervisors  of  Tuba  Co.,  13  Id. 
190;  Crisman  v.  Hdderer,  5  Col.  589;  Bailey  v.  Simpson,  57  Ga.  523;  Fo7-t 
Clark  H.  R'y  Co.  v.  Anderson,  108  111.  64;  48  Am.  Rep.  545;  Amelung  v.  Sec- 
hamp,  9  GUI  &  J.  468;  Carlisle  v.  Stevenson,  3  :NId.  Ch.  499;  White  v.  Fkinni- 
gan,  1  Md.  525;  54  Am.  Dec.  608;  Blaine  v.  Brady,  64  Md.  373;  McKinzie  v. 
Mattheivs,  59  Mo.  99;  Tigardv.  Moffitt,  13  Neb.  565;  77(om  v.  Sweeney,  12 
Nev.  251;  Frinh  v.  SewaH,  94  N.  C.  484;  Leitham  v.  Cws/cifc,  1  Utah,  242j 
ScJtoonover  v,  .Bn'^/A^,  24  W.  Va,  698;  Cresap  v.  Kemble,  26  Id.  603. 

Fixtures,  What  are,  as  between  Mortgagor  and  Mortoaoee:  See 
Sogers  v.  PrattviUe  M/g.  Co.,  60  Am.  Rep.  171;  i'bote  v.  Oooch,  60  Id.  411; 
Woolford  V.  Baxter,  53  Id.  1,  note  5;  Tliomaa  v.  Davis,  43  Id.  756;  Hubbell  v. 
JBloKi  Cambridge  Five  Cents  Savings  Bank,  42  Id.  446,  note  447;  HamiUon  v. 
Huntley,  41  Id.  593;  McKeage  v.  Hanover  F.  I.  Co.,  37  Id.  471,  note  472; 
CfoJe  Marble  Mills  Co.  v.  Quinn,  32  Id,  259;  Jones  v.  Detroit  Chair  Co.,  31 
Id.  314;  Adams  v.  Beadle,  29  Id.  487;  5to<e  Samngs  Bank  v.  Kirckeval,  27  Id. 
310;  2fcCo?jne«  V.  .Stooc/,  25  Id.  12;  Arnold  v.  Crowder,  25  Id.  260;  Ottumwa 
W.  M.  Co.  V.  Hawley,  24  Id.  719,  note  726;  Creen  v.  Phillips,  21  Id.  323; 
Eaves  v.  £'«<««,  15  Id.  345;  Tiffl  v.  Horion,  13  Id.  537;  Pierce  v.  Geojv/e,  11 
Id.  310,  note  314;  Sowden  v.  Craig,  96  Am.  Dec.  125;  Daniels  v.  ^otoe,  95  Id. 
797;  Bogera  v.  Crow,  93  Id.  299,  note  303;  McLaughlin  v.  i\ra«A,  92  Id.  741^ 
note  743,  where  other  cases  in  that  series  are  collected. 

CoNSTRUCTTVB  ANNEXATION  OF  FIXTURES:  See  Peck  V.  Bat^ldtTt  M  Aia. 
Dec.  392,  note  395,  collecting  other  cases  in  that  series. 


Adams  v.  Beall. 

[67  Mabtland,  68.] 

Monet  Paid  bt  Minor,  in  Consideration  oir  his  bxinq  Admtttbd  a» 
Parser  in  a  business,  cannot,  on  his  voluntarily  withdrawing  from  th» 
partnership  into  which  he  had  actually  entered,  and  in  which  he  had  re- 
mained for  more  than  a  year,  be  recovered  by  him,  unless  he  was  induced 
to  enter  into  the  partnership  by  the  fraudulent  representations  of  the 
party  to  whom  he  paid  the  money. 

Iniant  may  Avoid  Contract  op  Personal  Nature,  or  one  relating  to  per- 
sonal property,  either  before  or  after  his  majority. 

Action  at  law  brought  by  the  appellee,  an  infant,  by  his 
next  friend,  against  the  appellant.  The  first  and  sixth  prayers 
of  the  plaintiff. below,  which  are  referred  to  in  the  opinion,  are 
as  follows:  "  1.  That  if  the  jury  shall  find  from  the  evidence 
that  the  plaintiff,  Beall,  passed,  delivered,  or  paid  over  to  the 
defendant,  Adams,  on  or  about  the  sixth  day  of  July,  1883,  the 
sum  of  two  thousand  nine  hundred  dollars,  and  that  said 
plaintiff,  Beall,  was  at  that  time  an  infant  within  the  age  of 
twenty-one  years,  and  that  said  money  was  the  property  of 
said  Beall,  and  that  said  money  was  so  passed,  delivered,  or 
paid  over  by  said  plaintiff,  Beall,  to  said  defendant,  Adams, 
in  pursuance  of  trade,  and  that  said  plaintiff,  Beall,  has  de- 


380  Adams  v.  Beall.  [Maryland, 

manded  of  eaid  defendant,  Adams,  said  sum  of  money,  and 
that  said  defendant,  Adams,  has  neglected,  withheld,  and  re- 
fused to  pay  back,  return,  and  reimburse  said  plaintiflf,  Beall, 
said  sum  of  money,  then  their  verdict  must  be  for  the  plain- 
tiff, for  the  said  sum  so  paid  by  him,  less  any  sum  of  money 
which  from  the  evidence  the  jury  may  believe  the  defendant 
has  paid  the  said  plaintiff."  "  6.  That  if  the  jury  shall  find 
from  the  evidence  that  the  plaintiff,  Beall,  on  or  about  the 
sixth  day  of  July,  1883,  paid  over,  delivered,  or  passed  to  the 
defendant,  Adams,  the  sum  of  two  thousand  nine  hundred 
dollars,  and  that  said  plaintiff  was  at  that  time  an  infant  un- 
der the  age  of  twenty-one  years,  and  that  said  sum  of  money 
was  the  plaintiff's,  and  that  said  sum  of  money  was  not  paid 
by  said  plaintiff  to  said  defendant  for  necessaries  furnished  by 
said  defendant  to  said  plaintiff,  and  that  said  sum  of  money 
was  paid  by  said  plaintiff  to  said  defendant  in  pursuance  of 
trade  and  as  consideration  of  an  agreement  of  partnership 
between  said  plaintiff  and  defendant,  of  date  of  July,  1883, 
and  that  the  payment  of  said  sum  of  money  was  not  for  the 
benefit  of  said  plaintiff,  and  that  said  plaintiff  has  avoided 
and  rescinded  said  agreement  of  partnership  within  the  period 
of  his  infancy,  and  has  demanded  of  said  defendant  said  sum 
of  money,  and  that  said  defendant  has  withheld,  neglected, 
and  refused  to  pay  back  or  return  and  reimburse  said  plaintiff 
Baid  sum  of  money,  then  their  verdict  must  be  for  the  plain- 
tiff for  the  sum  of  money  so  paid  by  him  to  the  defendant, 
less  such  sums  as  shall  have  been  proved  to  have  been  paid 
by  the  defendant  to  the  plaintiff."  The  verdict  and  judgment 
were  for  the  plaintiff,  and  the  defendant  appealed.  The  other 
facts  are  stated  in  the  opiuion. 

Albert  Ritchie,  for  the  appellant. 
William  Colton,  for  the  appellee. 

By  Court,  Robinson,  J.  The  appellee,  while  a  minor,  paid  to 
the  appellant  two  thousand  nine  hundred  dollars,  as  a  consid- 
eration for  being  admitted  as  a  partner  in  the  appellant's  busi- 
ness. The  partnership  continued  for  more  than  a  year,  and 
finding  it  unprofitable,  the  appellee,  without  formally  dissolv- 
ing the  partnership,  withdrew  from  the  business. 

The  question  in  the  case  is,  whether  the  appellee  is  entitled 
to  recover  of  the  appellant  the  money  thus  paid.  His  right 
to  disafiirm  the  partnership  contract,  and  to  avoid  all  liabili- 


March,  1887.]  Adams  v.  Beall.  881 

ties  under  it,  including  the  partnership  debts,  is  not  denied. 
Being  an  infant  when  the  contract  was  made,  this  is  a  privi- 
lege to  which,  for  his  protection,  he  is  entitled.  But  when  he 
seeks  to  recover  money  paid  for  a  consideration  which  he  has 
enjoyed,  or  has  had  the  benefit  of,  this  presents  quite  another 
question.  The  two  thousand  nine  hundred  dollars  was  paid  to 
the  appellant  in  consideration  of  being  admitted  as  a  partner 
in  his  business.  He  was  admitted  as  a  partner,  and  continued 
to  be  a  member  of  the  firm  for  at  least  a  year.  The  business 
was  not,  it  is  true,  a  successful  one,  but  this,  in  the  absence  of 
fraudulent  representations  on  the  part  of  the  appellant,  cannot 
affect  the  question.  We  are  dealing  with  a  contract  between 
an  infant  and  an  adult,  executed  on  both  sides,  and  upon  the 
faith  of  which  money  was  paid  by  the  infant  for  a  considera- 
tion which  he  has  enjoyed.  The  privilege  of  infancy,  says 
Lord  Mansfield  in  Zouch  v.  Parsons,  3  Burr.  1804,  was  intended 
as  a  shield  or  protection  to  the  infant,  and  not  to  be  used  as 
the  instrument  of  fraud  and  injustice  to  others;  and  to  hold 
that  an  infant  has  the  right,  not  only  to  withdraw  from  a 
partnership  at  his  own  pleasure,  and  to  subject  the  adult  part- 
ner to  the  payment  of  all  the  partnership  debts,  but  has  the 
right  also  to  recover  money  paid  by  him  as  a  consideration 
for  being  admitted  into  the  partnership,  would  be,  it  seems  to 
us,  to  extend  the  privilege  beyond  any  just  principles  upon 
which  it  is  founded. 

So  long  ago  as  Brawner  and  Wife  v.  Franklyn,  4  Gill,  463^ 
it  was  held  that  where  an  infant  advances  money  upon  a 
contract,  he  cannot  disaffirm  the  contract  and  recover  the 
money  advanced,  if  he  has  enjoyed  the  consideration  for  which 
the  money  was  paid.  Holm.es  v.  Blogg,  8  Taunt.  508,  is  to  the 
same  effect.  There  the  infant  paid  a  sum  of  money  as  his 
share  of  the  consideration  for  a  lease  of  premises,  in  which 
he  and  his  partner  carried  on  the  business  of  shoemaking. 
They  occupied  the  premises  from  March  till  June,  when  the 
infant  dissolved  the  partnership,  and  brought  an  action  to 
recover  back  the  money  he  had  paid  the  lessor  for  his  lease. 
Gibbs,  C.  J.,  said:  "He  may,  it  is  true,  avoid  the  lease;  he 
may  escape  the  burden  of  the  rent  and  avoid  the  covenants;, 
but  that  is  all  he  can  do.  He  cannot,  by  putting  an  end  to 
the  lease,  recover  back  any  consideration  which  he  has  paid 
for  it;  the  law  does  not  enable  him  to  do  that." 
•  It  is  a  mistake  to  suppose  that  the  principle  on  which  this 
case  was  decided  was  either  overruled  or  even  questioned  in 


382  Adams  v.  Be  all.  [Maryland, 

Corpe  V.  Overton,  10  Bing.  252.  In  the  latter  case,  the  plain- 
tiff,  while  an  infant,  signed  an  agreement  to  enter  into  part- 
nership with  the  defendant,  and  to  pay  him  one  thousand 
pounds  for  a  share  in  the  business,  and  to  execute  on  the  first 
day  of  January  a  partnership  deed  with  the  usual  covenants. 
He  also  paid  one  hundred  pounds  as  a  deposit  for  the  fulfill- 
ment of  his  part  of  the  contract.  The  plaintiff  afterwards  dis- 
affirmed the  partnership  contract,  and  never  did  in  fact  become 
a  partner.  The  suit  was  brought  to  recover  of  the  defendant 
the  one  hundred  pounds  paid  by  the  infant  as  a  deposit. 

Tindal,  C.  J.,  said  the  case  was  distinguishable  from  Holmea 
V.  Blogg,  supra.  In  that  case,  the  plaintifi^  and  partner  occu- 
pied the  premises  from  March  till  June,  and  the  money  was 
paid  for  something  available, — that  is,  for  three  months'  en- 
joyment of  the  premises.  "  In  the  present  case,  the  plaintiff 
has  paid  to  Overton  one  hundred  pounds,  for  which  he  has 
not  received  the  slightest  consideration.  The  money  was  paid 
either  with  a  view  to  a  present  or  a  future  partnership.  I 
understand  it  as  having  been  paid  with  a  view  to  a  future 
partnership.  Now,  the  partnership  was  not  to  be  entered  into 
till  Januar}'^,  1833,  and  in  the  mean  while  the  infant  had  de- 
rived no  advantage  whatever  from  the  contract." 

Bosanquet,  J.:  "We  are  far  from  impeaching  the  judg- 
ment of  the  court  in  Holmes  v.  Blogg,  as  applicable  to  the 

facts   of  that  case Here  the  infant  has   derived   no 

benefit  whatever  from  the  contract,  the  consideration  of  which 

has  wholly  failed The  one  hundred  pounds  paid  here 

was  in  the  nature  of  a  deposit.  Money  paid  on  a  deposit  may 
generally  be  recovered  back,  where  the  contract  goes  ofi*;  and 
here  the  contract  was  defeated  before  the  infant  derived  any 
benefit  from  it." 

Alderson  and  Gaselee,  J  J.,  were  of  the  same  opinion. 

The  plaintiff  was  allowed  to  recover  the  deposit  money  paid 
by  him  while  an  infant,  because  the  partnership  contract  was 
disaffirmed  by  Corpe  before  the  time  agreed  upon  for  it  to 
begin.  As  was  said  by  Alderson,  J.:  "Before  the  contract  is 
performed,  one  of  the  parties  revokes  it,  and  remits  the  other 
to  the  same  situation  as  if  the  contract  had  never  been  made." 

The  distinction  between  Holmes  v.  Blogg  and  Corpe  v.  Over- 
ton, supra,  is  this:  In  the  former,  the  plaintiff  was  not  allowed 
to  recover  the  money  paid  by  him  while  an  infant,  because  it 
was  paid  on  a  consideration  which  he  had  in  part  enjoyed; 
while  in  the  latter,  the  plaintiff  was  allowed  to  recover  as 


March,  1887.]  Adams  v.  Beall,  383 

upon  an  entire  failure  of  consideration.  Passing,  then,  trom 
these  cases,  we  come  to  Ex  parte  Taylor,  8  De  Grex,  M.  &  G. 
254,  which  is  a  case  directly  in  point.  There  an  infant  paid  a 
premium  on  entering  into  a  partnership,  and  before  he  came  of 
age  disaffirmed  the  contract,  and  upon  the  bankruptcy  of  the 
firm  attempted  to  prove  for  the  premium  thus  paid.  Lord 
Justice  Knight  Bruce  said:  "In  my  opinion,  a  case  of  fraud 
has  not  been  established.  That  being  so,  the  matter  remains 
one  of  a  contract  fairly  made,  or  as  fairly  made  as  a  contract 
with  an  infant  could  be  made, — a  contract  upon  which  the 
infant  acted  during  his  minority,  and  which,  during  the  mi- 
nority, has  been  in  part  performed  on  each  side.  In  such  a 
state  of  things,  I  conceive  that  if  the  bankrupts  had  continued 
solvent,  and  an  action  had  been  brought  against  them  by  the 
minor,  either  before  or  after  majority,  for  the  purpose  of  recov- 
ing  the  money  in  question,  or  any  part  of  it,  there  must  have 
been  either  a  nonsuit  or  a  verdict  against  him." 

Lord  Justice  Turner  said:  "It  is  clear  that  an  infant  cannot 
be  absolutely  bound  by  a  contract  entered  into  during  his 
minority.  He  must  have  a  right  upon  his  attaining  his  ma- 
jority to  elect  whether  he  will  adopt  the  contract  or  not.  It 
is,  however,  a  different  question  whether,  if  an  infant  pays 
money  on  the  footing  of  a  contract,  he  can  afterwards  recover 
it  back.  If  an  infant  buys  an  article  which  is  not  a  necessary, 
he  cannot  be  compelled  to  pay  for  it;  but  if  he  does  pay  for  it 
during  his  minority,  he  carmot,  on  attaining  his  majority, 
recover  the  money  back." 

We  have  quoted  at  length  from  the  preceding  cases,  because 
the  question  at  issue  is  an  important  one,  and  comes  before  us 
for  the  first  time  for  decision.  And  whilst  fully  recognizing 
the  privilege  which  the  law  accords  to  minors  in  regard  to  con- 
tracts made  during  their  minority,  yet  in  a  case  like  the  pres- 
ent, where  money  is  paid  by  a  minor  in  consideration  of  being 
admitted  as  a  partner  in  the  business  of  the  appellant,  and  he 
does  become  and  remains  a  partner  for  a  given  time,  he  ought 
not  to  be  allowed  to  recover  back  the  money  thus  paid,  unless 
he  was  induced  to  enter  into  the  partnership  by  the  fraudulent 
representations  of  the  appellant. 

Whether  an  infant  can  avoid  a  contract  and  sue  thereon 
during  his  minority,  or  must  wait  until  he  arrives  at  age,  is  a 
question  about  which  the  decisions  are  conflicting.  To  hold 
that  he  cannot  disaffirm  a  voidable  contract  until  he  attains 
his  majority  would  in  many  cases  work  the  greatest  injustice 


884  King  v.  Warfield.  [Maryland, 

to  an  infant.  And  where  the  contract  is  of  a  personal  nature, 
or  relating  to  personal  property,  we  see  no  good  reason  why 
Buch  a  contract  may  not  be  avoided  either  before  or  after  his 
majority:  Stafford  v.  Roof,  9  Cow.  626;  Shipman  y.Horton,  17 
Conn.  481;  Willis  v.  Twamhly,  13  Mass.  204. 

The  court  having  erred  in  granting  the  plaintiff's  first  and 
sixth  prayers,  the  judgment  must  be  reversed. 

Judgment  reversed  and  new  trial  awarded. 


Power  of  Infant  to  Avoid  his  Contract:  See  House  v.  Alexander,  55 
Am.  Rep.  189;  Miller  v.  Smith,  37  Id.  407;  Turner  v.  Gaither,  35  Id.  574; 
ShuHleffv.  Millard,  34  Id.  640;  Tohey  v.  Wood,  25  Id.  27,  note  30;  Chandler 
V.  Simmons,  93  Am.  Dec.  117,  note  124,  where  other  cases  in  that  series  are 
collected;  Briggs  v.  McCabe,  89  Id.  503,  note  606,  collecting  other  cases. 

Iktant  mat  bb  Partner:  See  Penn  v.  WhOeJvead,  94  Am.  Dec.  478,  not«498. 


King  v,  Waefield. 

167  Mabti.ani>,  246.] 
To  Bender  E^XEonroRT  Contract  Valid,  Both  Parties  thereto  must 
BE  Bound  by  it,  and  no  action  to  recover  damages  for  the  non-per- 
formance of  a  contract  which  is  not  binding  upon  both  parties  can  hv 
maintained.  Where,  therefore,  an  instrument  in  writing  under  seal, 
purporting  to  be  a  lease,  provides  that  it  shall  not  be  binding  on  the 
lessee  in  any  way  until  he  shall  be  appointed  and  installed  by  the  proper 
officers  of  a  certain  railroad  company  as  freight  and  ticket  agent  of  said 
company  at  a  particular  station,  such  lessee  cannot  maintain  an  action 
for  damages  for  the  non-performance  of  the  contract  until  he  has  been 
so  appointed  and  installed,  although  he  elects  that  the  lease  shall  be 
binding  upon  him,  and  demands  possession  of  the  premises  demised 

Action  for  non-performance  of  a  contract.  The  opinion 
Etates  the  case. 

William  Brace  and  B.  A.  Richmond,  for  the  appellant. 

William  Kealhofer,  J.  B.  Henderson,  and  George  Peter,  for  the 
appellees. 

By  Court,  Yellott,  J.  An  instrument  of  writing  under 
seal,  purporting  to  be  a  lease,  was  executed  on  the  sixteenth 
day  of  December,  1884,  by  the  parties  to  this  cause.  By  the 
terms  of  this  instrument,  the  appellees  leased  twenty-one 
acres  of  land  on  the  Washington  County  branch  of  the  Balti- 
more and  Ohio  railroad,  together  with  a  dwelling-house,  and 
other  improvements  thereon,  to  the  appellant,  for  the  term  of 
fifteen  months  from  the  first  day  of  January,  1885,  at  the 


May,  1887.]  King  v.  Warfield.  385 

yearly  rent  of  one  thousand  dollars,  with  the  privilege  of  re- 
newing said  lease  on  the  same  terms  after  its  expiration. 

It  is,  however,  expressly  agreed  between  said  parties  that 
this  lease  shall  not  be  binding  on  the  appellant  "  in  any  way" 
until  he,  the  said  appellant,  shall  be  "appointed  and  installed 
by  the  proper  officers  of  the  Baltimore  and  Ohio  Railroad 
Company  as  freight  and  ticket  agent  of  said  company  at 
Breathedsville  station,  in  Washington  County,  Maryland,  on 
the  Washington  County  branch  of  the  Baltimore  and  Ohio 
railroad." 

This  instrument  of  writing  under  seal  is  set  forth  in  full 
in  the  declaration,  and  the  plaintiff  then  avers  that,  although 
he  was  not  appointed  by  the  officers  of  the  said  railroad  com- 
pany at  the  place  aforesaid,  he  elected  that  said  lease  should 
be  binding  on  him,  and  demanded  possession  of  said  demised 
premises  from  the  defendants,  who  refused  to  deliver  posses- 
sion, and  in  consequence  of  such  refusal  he  has  brought  suit 
for  the  recovery  of  damages. 

To  the  declaration  the  defendants  demurred,  and  the  de- 
murrer was  ruled  good  by  the  court,  and  final  judgment  ren- 
dered against  the  plaintiff,  and  in  favor  of  the  defendants  for 
costs.     From  this  judgment  an  appeal  has  been  taken. 

The  record  discloses  the  existence  of  an  executory  contract. 
It  is  said  to  be  an  elementary  principle  that,  to  render  an 
executory  contract  valid,  both  parties  must  be  bound:  Rath- 
bone  V.  Warren,  10  Johns.  587. 

Now,  it  will  be  seen  that  it  is  provided  in  this  instrument 
under  seal  that  "  this  lease  shall  not  be  binding  on  the  said 
King  in  any  way  until  the  said  King  shall  be  appointed  to 
and  installed  by  the  proper  officers  of  the  Baltimore  and  Ohio 
Railroad  Company  as  freight  and  ticket  agent  of  the  said  com- 
pany at  Breathedsville  station,  in  Washington  County,  Mary- 
land, on  the  Washington  County  branch  of  the  Baltimore 
and  Ohio  railroad."  It  is  thus  apparent  that  the  appellant 
is  entirely  free  from  any  and  all  obligations  intended  to  be 
created  by  this  instrument  under  seal,  until  the  happening 
of  an  event  which  has  not  occurred.  The  question  then  to  be 
determined  is,  whether  the  appellees  are  bound  by  a  contract 
during  the  period,  while  the  other  party  remains  exempt  from 
all  obligations,  and  could  not  be  sued  for  any  alleged  infrac- 
tion. No  such  principle  has  ever  been  sanctioned  by  ad- 
judication when  the  terms  of  the  contract  impose  mutual 
obligations.     On  the  contrary,  this  court  has  said  that  "  it  is 

Ku.  St.  Rip..  Vol.  I.  — 25 


886  King  v,  Wakfield.  [Maryland, 

certainly  necessary  to  set  out  in  the  declaration  a  contract 
binding  on  both  parties,  when  a  suit  is  instituted  to  recover 
damages  for  the  non-performance  of  the  contract":  Berry  v, 
Harper,  4  Gill  &  J.  470;  Lamar  v.  McNamee,  10  Id.  120;  32 
Am.  Dec.  152. 

And  in  Routledge  v.  Grant,  3  Car.  &  P.  273,  Best,  C.  J.,  em- 
phatically says:  "It  is  not  just  that  one  party  should  be  bound 
when  the  other  is  not." 

It  is  manifest  that  this  is  one  of  those  legal  principles  so 
well  established  as  to  be  beyond  the  scope  of  controversy.  The 
proper  construction  of  this  executory  contract  is,  that  it  was  to 
become  binding  upon  both  parties  when  the  appellant  obtained 
the  appointment  he  was  seeking  to  obtain.  It  would  become 
•operative  as  soon  as  that  contingency  happened,  and  not  before. 
As  that  contingency,  which  was  dependent  on  the  action  of 
third  parties,  has  not  happened,  the  appellant  is  free  from  all 
obligations,  and  is  therefore  in  no  position  to  maintain  a  suit 
against  the  appellees  for  an  alleged  non-performance  of  a  con- 
tract by  which  he  is  not  bound  in  any  respect.  He  cannot,  at 
his  own  option,  now  impose  on  them  obligations  not  created  by 
the  instrument  under  seal.  As  was  said  by  Chancellor  John- 
con  in  Duvall  v.  Myers,  2  Md.  Ch.  405,  "  a  party  not  bound  by 
the  agreement  itself  has  no  right  to  call  upon  the  judicial  au- 
thority to  enforce  performance  against  the  other  contracting 
party,  by  expressing  his  willingness  to  perform  his  part  of  the 
agreement.  His  right  to  the  aid  of  the  court  does  not  depend 
upon  his  subsequent  offer  to  perform  the  contract  on  his  part, 
when  events  may  have  rendered  it  advantageous  to  do  so,  but 
upon  its  originally  obligatory  character." 

There  is  clearly  no  error  in  the  ruling  of  the  court  below, 
and  its  judgment  should  be  aflarmed. 

Judgment  affirmed. 


EXSOUTORT  GOMTRAOT,  TO  BB   EnXORCEABLK,   MUST  BK  BUTDIKO  ON  BOTH 

TABTnai  See  Oampbdlr.LanUfmif  61  AxxLB/ey.liBenedktv.Ljfnt^7  Am.  Ihc. 
484,  note  492.  But  a  promise  lacking  mutuality  at  its  inception  becomea 
binding  upon  the  promisor  after  performance  by  the  promisee:  Willeia  v.  Sun 
At.  I.  Co.,  6  Am.  Rep.  31;  Dea  Moines  V.  R.  R.  Co.  v.  Graff,  1  Id.  256; 
L'Amoretix  v.  Gould,  57  Am.  Dec.  524,  note  526. 


June,  1887.]  Parker  v.  State.  387 

Parker  v.  State. 

167  Makyland,  S29.J 

That  Party  Alleged  to  have  been  Injured  Made  Complaint  whilb 
Injury  was  Recent  may  be  proved  on  the  examination  in  chief  in  a  trial 
for  rape,  bat  the  details  and  circumstances  of  the  transaction  cannot  be 
proved  on  such  examination  by  her  declarations. 

Where  Court,  at  Beginning  of  Trial  for  Rape,  Orders  All  Witnesses 
to  be  Excluded  from  the  court-room,  but  a  material  and  competent  wit- 
ness for  the  accused,  in  disobedience  of  the  order  of  the  court,  remains 
in  the  court-room  during  the  examination  of  the  witnesses,  the  court 
bsis  no  right  to  refuse  to  allow  such  witness  to  testify.  A  person  on  trial 
has  the  right  to  prove  the  truth  relating  to  the  accusation  against  him, 
by  the  evidence  of  all  witnesses  M'ho  have  any  knowledge  of  it,  and  he 
does  not  forfeit  this  right  by  the  misbehavior  of  a  witness. 

Indictment  for  rape.     The  facts  are  stated  in  the  opinion. 
George  C.  Merrick  and  Daniel  R.  Magruder,  for  the  appellant. 
Charles  B.  Roberts,  attorney-general,  for  the  appellee. 

By  Court,  Bryan,  J.  The  indictment  against  the  prisoner 
contained  two  counts.  The  first  charged  that  he  had  com- 
mitted a  rape  on  the  person  of  one  Kitty  Wills,  and  the  second 
charged  an  assault  upon  her  with  intent  to  commit  a  rape. 
He  was  acquitted  on  the  first  count  and  convicted  on  the  sec- 
ond. The  case  comes  before  us  on  two  bills  of  exception  taken 
at  the  trial. 

The  first  bill  of  exception  states  that  the  prosecuting  wit- 
ness gave  evidence  tending  to  show  the  commission  of  the 
oflfense  charged  in  the  indictment  by  the  prisoner  on  a  certain 
Saturday.  There  are  two  ofienses  charged  in  the  indictment; 
we  presume  the  offense  intended  to  be  designated  is  the  rape, 
and  not  the  assault  with  intent  to  commit  it.  The  mother  of 
the  prosecuting  witness  then  testified  that  on  Friday  after  the 
Saturday  on  which  the  assault  was  alleged  to  have  been  com- 
mitted, she  found  her  daughter's  drawers  under  certain  steps 
with  blood  staing  upon  them.  She  was  then  asked  this  ques- 
tion by  the  state:  "What  did  the  girl,  Kitty  Wills,  say  on 
that  occasion  was  the  reason  she  had  hid  the  drawers?"  Ob- 
jection to  the  question  was  overruled  by  the  court,  and  the 
witness  was  permitted  to  answer  it.  The  answer  is  thus  stated 
in  the  bill  of  exception:  "Whereupon  the  witness  in  answer 
stated  that  the  girl,  crying  all  the  time,  said:  'Now,  mother, 
if  you  will  make  me  a  faithful  promise  not  to  whip  me,  I  will 
tell  you  the  truth  about  it.    Uncle  Tom  Parker  took  me  up  in 


888  Pabker  v.  State.  [Maryland, 

hiB  arms,  and  threw  me  down  on  the  ground,  pulled  up  my 
clothes,  and  put  something  in  me  sharp  like  a  knife,  and  made 
me  cry;  when  I  got  up  I  said  I  was  going  back  home  and  tell 
my  mamma,  and  he  said  if  I  did  he  would  kill  me  and  throw 
me  in  the  river,  and  run  for  his  life;  he  told  me  to  hide  the 
drawers,  and  if  you  said  anything  about  them,  to  tell  you  to 
come  to  him.'"  It  would  have  been  competent  to  prove  on  the 
examination  in  chief  that  the  party  alleged  to  have  been  in- 
jured made  complaint  while  the  injury  was  recent;  but  the 
details  and  circumstances  of  the  transaction  cannot  be  proved 
on  such  examination  by  her  declarations:  1  Greenl.  Ev.,  sec. 
102.  The  offer  now  under  consideration  was  an  attempt  to 
prove  by  her  declarations  that  she  had  hidden  her  drawers, 
and  show  her  motive  for  hiding  them.  When  an  outrage  has 
been  committed  on  a  woman,  the  instincts  of  her  nature  prompt 
her  to  make  her  wrongs  known,  and  to  seek  sympathy  and 
assistance.  The  complaint  which  she  then  makes  is  the  nat- 
ural expression  of  her  feelings.  It  may  therefore  be  shown  in 
evidence  as  a  circumstance  which  would  usually  and  probably 
have  occurred  in  case  the  offense  had  been  committed.  But 
the  evidence  which  the  court  admitted  is  not  of  this  nature.  It 
is  simply  hearsay, — a  narration  of  a  past  event,  and  not  the 
language  of  any  emotion  caused  by  the  supposed  occurrence. 

At  the  beginning  of  the  trial,  the  court  ordered  that  the 
witnesses  on  both  sides  should  be  excluded  from  the  court- 
room. It  appeared  that  one  Mary  Edelin,  a  material  and 
competent  witness  for  the  traverser,  in  disobedience  of  the 
court's  order,  had  remained  in  the  court-room  during  the 
examination  of  the  witnesses.  The  court,  for  this  reason, 
refused  to  permit  her  to  testify.  It  was  in  the  discretion  of 
the  court  to  order  the  witnesses  to  leave  the  court-room;  but 
it  is  not  reasonable  to  take  away  from  a  prisoner  on  trial  the 
benefit  of  testimony  on  which  his  life  may  depend,  because  of 
the  misconduct  of  another  person. 

The  humanity  of  the  law  is  shocked  at  the  punishment  of 
the  innocent.  It  provides  with  the  greatest  solicitude  that 
persons  accured  of  crimes  shall  have  fair  and  impartial  trials. 
The  object  is  considered  of  suflScient  importance  to  be  guaran- 
teed by  the  solemn  and  impressive  declarations  of  our  organic 
law.  The  scheme  and  theory  of  our  legal  system  seek  to  pro- 
vide that  no  man  shall  be  adjudged  guilty  unless  the  truth  of 
the  matter  charged  upon  him  has  been  established  after  a  fair 
and  full  investigation.     The  ascertainment  of  the  truth  is  the 


June,  1887.]  Parker  v.  State.  389 

great  end  and  object  of  all  the  proceedings  in  a  judicial  trial. 
But  this  object  is  pursued  by  general  rules  which  experience 
has  shown  to  be  useful  in  guarding  against  erroneous  conclu- 
sions. By  the  operation  of  these  general  rules,  certain  well- 
defined  classes  of  persons  are  forbidden  to  testify.  Subject  to 
these  well-known  and  distinctly  marked  exceptions,  a  person 
on  trial  has  the  right  to  prove  the  truth  relating  to  the  accusa- 
tion against  him  by  the  evidence  of  all  witnesses  who  have 
any  knowledge  of  it.  And  they  are  compelled  to  attend  and 
deliver  their  testimony  in  his  behalf.  Since  such  great  care 
has  been  taken  to  secure  the  right  of  an  accused  person  to 
prove  the  truth  relating  to  the  accusation  against  him,  it  would 
be  very  strange  if  he  should  forfeit  this  most  precious  privilege 
by  the  misbehavior  of  a  witness.  Authorities  were  cited  at 
the  bar  for  the  purpose  of  showing  that  in  some  jurisdictions 
it  was  within  the  discretion  of  the  judge  to  refuse  to  permit  a 
witness  to  testify  under  the  circumstances  stated  in  the  second 
exception.  If  the  evidence  of  such  witness  would  show  the 
innocense  of  a  prisoner  on  trial  for  his  life,  then  the  discretion 
of  the  judge  to  admit  or  reject  the  testimony  amounts  to  a 
discretion  to  take  the  prisoner's  life,  or  to  spare  it.  The  wise, 
just,  and  merciful  provisions  of  our  criminal  law  do  not  place 
human  life  on  such  an  uncertain  tenure.  A  man's  life  and 
liberty  are  protected  by  fixed  rules  prescribed  by  the  law  of 
the  land,  and  are  not  enjoyed  at  the  discretionary  forbearance 
of  any  tribunal.  All  suggestions  of  this  kind  are  alien  to  the 
spirit  and  genius  of  our  jurisprudence. 
Rulings  reversed,  and  new  trial  ordered. 


Details  op  Complaint  bt  Pbosecutrix  are  not  Admissible  is  Chiev 
IN  Trial  for  Rape:  See  Stale  v.  Robertson,  58  Am.  Rep.  201;  People  v. 
Mayes,  66  Id.  126;  OUson  v.  State,  38  Id.  366,  note  369,  where  this  Eubject  is 
discussed;  Hombeck  v.  State,  36  Id.  608;  note  to  Smith  v.  State,  80  Am.  Dec. 
371;  Laughlin  v.  State,  61  Id.  444;  PhUlipa  v.  State,  49  Id.  709.  Contra: 
Benstine  v.  State,  31  Am.  Rep.  593;  StaU  v.  Kinney,  26  Id.  436;  StaU  v.  De 
Wolf,  20  Am.  Doc.  90. 

Evidence  of  Witkehs  Who  Disobeys  Order  of  Exclusion  ought  not 
TO  BE  Rejected:  See  State  v,  Tliomas,  60  Am.  Rep.  720.  In  Laughlin  v. 
Stale,  61  Am.  Dec.  444,  it  was  held  to  rest  in  the  discretion  of  the  court  to 
receive  the  testimony  of  such  a  witness.  In  Keit/i  v.  Wilton,  36  Id.  443,  it 
was  held  that  where  the  disobedience  of  the  order  was  unintentional,  the 
testimony  should  not  be  rejected.  In  Schneider  v.  Haas,  68  Am.  Rep.  296, 
it  was  held  that  a  statute  providing  that  the  judge  may  exclude  any  witness 
of  the  adverse  party  does  not  authorize  the  exclusion  of  a  party  to  the  causes 


890         Philadelphia  etc.  R.  R.  Co.  v.  Fronk.     [Maryland, 

Philadelphia,  Wilmington,  and  Baltimoee  K.  R 

Co.  V.  Feonk. 

[67  Maryland,  839.1 
Pailttkb  to  Ring  Bell  or  Blow  Whistle  op  Locomotive  at  Privatb 
Crossing  in  the  open  country,  guarded  by  gates  on  either  side,  where 
there  is  no  station  for  passengers  or  freight,  nor  any  side-track,  and 
where  no  trains  ever  stopped;  where  for  more  than  twenty  years  no 
whistle  had  ever  been  sounded,  nor  whistling-post  put  up,  nor  any  re- 
quest therefor  made  by  the  owners  of  the  property  entitled  to  use  the 
crossing;  and  where  the  line  of  the  railroad  on  either  side  is  nearly 
straight,  —  is  not  evidence  of  negligence  on  the  part  of  the  railroad  com- 
pany to  go  to  the  jury. 

Action  for  damages.     The  opinion  states  the  case. 

William  J.  Jones  and  Alexander  EvanSj  for  the  appellant. 

Albert  Constable,  for  the  appellee. 

By  Court,  Miller,  J.  At  the  close  of  the  testimony,  the 
defendant  company  asked  the  court  to  instruct  the  jury  that 
there  was  no  evidence  legally  suflBcient  to  show  that  the  plain- 
tiff was  injured  by  its  negligence  or  that  of  its  agents,  and  he 
cannot  therefore  recover. 

There  can  be  no  serious  controversy  as  to  the  legal  princi- 
ples applicable  to  a  case  like  this.  The  onus  of  proving  that 
the  injury  was  caused  by  the  negligence  of  the  company  is  on 
the  plaintiff,  and  if  there  be  no  evidence  legally  sufficient  for 
that  purpose,  the  action  must  fail.  It  has  been  so  often  de- 
cided by  the  appellate  court  of  this  state  that  the  legal  suffi- 
ciency of  evidence  is  a  question  of  law  for  the  court  that  it  is 
useless  to  cite  the  decisions,  and  such  is  the  settled  law  in 
every  state  of  the  Union  as  well  as  in  England.  As  was  said 
by  Lord  Chancellor  Cairns  in  a  similar  case,  Metropolitan  Ry 
Co.  V.  Jackson,  L.  R.  3  App.  C.  197:  "The  judge  has  a  cer- 
tain duty  to  discharge,  and  the  jurors  have  another  and  a 
different  duty.  The  judge  has  to  say  whether  any  facts  have 
been  established  by  evidence  from  which  negligence  may  be 
reasonably  inferred;  the  jurors  have  to  say  whether  from  these, 
facts,  when  submitted  to  them,  negligence  ought  to  be  inferred, 
and  it  is  of  the  greatest  importance  in  the  administration  of 
justice  that  these  separate  functions  should  be  maintained, 
and  should  be  maintained  distinct.  It  would  be  a  serious  in- 
road on  the  province  of  the  jury  if,  in  a  case  where  there  are 
facts  from  which  negligence  may  be  reasonably  inferred,  the 
judge  were  to  withdraw  the  case  from  the  jury  upon  the  ground 


June,  1887.]     Philadelphia  etc.  R.  R.  Co.  v.  Fronk.        391 

that,  in  his  opinion,  negligence  ought  not  to  be  inferred;  and 
it  would,  on  the  other  hand,  place  in  the  hands  of  the  jurors 
a  power  which  might  be  exercised  in  the  most  arbitrary  man- 
ner, if  they  were  at  liberty  to  hold  that  negligence  might  be 
inferred  from  any  state  of  facts  whatever.  To  take  the  in- 
stance of  actions  against  railway  companies:  A  company 
might  be  unpopular,  unpunctual,  and  irregular  in  its  service; 
badly  equipped  as  to  its  staff;  unaccommodating  to  the  pub- 
lic; notorious,  perhaps,  for  accidents  occurring  on  the  line; 
and  when  an  action  was  brought  for  the  consequences  of  an 
accident,  jurors,  if  left  to  themselves,  might,  upon  evidence  of 
general  carelessness,  find  a  verdict  against  the  company  in  a 
case  where  the  company  was  really  blameless.  It  may  be 
said  that  this  would  be  set  right  by  an  application  to  the 
court  in  bank,  on  the  ground  that  the  verdict  was  against  evi- 
dence; but  it  is  to  be  observed  that  such  an  application,  even 
if  successful,  would  only  result  in  a  new  trial;  and  on  a  second 
trial,  and  even  on  subsequent  trials,  the  same  thing  might 
happen  again." 

This  accident  happened  on  the  30th  of  May,  1885,  about 
nine  o'clock  in  the  morning,  while  the  plaintiff  was  driving  an 
empty  two-horse  wagon,  rigged  for  carrying  charcoal,  across 
the  railroad  tracks.  The  train  which  struck  the  wagon  was 
the  morning  express  passenger  train  from  Baltimore  to  Phila- 
delphia. This  train  stopped  but  twice  between  the  two  cities, 
was  running  at  the  rate  of  fifty  or  fifty-five  miles  per  hour,  and 
we  think  it  clear  that,  unless  the  failure  of  those  in  charge  of  it 
to  whistle  or  ring  the  bell  when  the  train  approached  the  place 
of  the  accident  was  evidence  to  go  to  the  jury  upon  the  ques- 
tion of  negligence  on  their  part,  there  was  no  evidence  what- 
ever to  sustain  the  action.  What,  then,  is  the  proof  on  this 
subject? 

The  crossing  where  the  accident  occurred  was  undoubtedly 
a  private  farm-crossing,  and  not  a  public  highway.  The  farm 
was  a  large  one  lying  between  the  county  road  and  the  river, 
and,  as  usual,  there  was  a  private  lane  or  road  from  the  county 
road  to  the  farm-house  for  the  convenience  of  the  owners  of  the 
property.  When  the  railroad  was  originally  located  and  con- 
structed, it  passed  between  the  barn  and  the  house,  across  this 
private  lane,  and  the  company  placed  planks  between  the  rails 
on  their  tracks  for  the  accommodation  of  those  using  the  cross- 
ing, and  presumably,  aleo,  for  the  protection  of  their  rails. 
Gates  were  erected  across  this  lane  on  both  sides  of  the  track, 


092         Philadelphia  etc.  R.  R.  Co.  v.  Fbonk.     [Maryland, 

which  were  usually  kept  closed.  There  was  also  a  gate  at  the 
county  road,  also  closed,  but  in  late  years  it  seems  to  have 
been  left  open.  Formerly,  and  for  a  short  period,  there  was  a 
fishery  on  the  river  shore,  and  the  way  to  it  was  down  this 
lane,  which  was  generally  used  during  the  fishing  season  by 
persons  going  there.  But  this  was  more  than  fifteen  years 
ago,  and  the  farmer  who  then  and  now  lives  in  the  farm-house 
says  that  after  1871  "it  was  used  only  by  me,  and  persons 
coming  to  see  me."  In  short,  there  is  no  proof  that  (other 
than  for  this  brief  period,  prior  to  1871)  this  road  has  ever 
been  used  by  any  other  person  than  the  owners  of  the  prop- 
erty and  their  employees,  and  for  their  private  and  exclusive 
purposes. 

The  McCullough  Iron  Company  bought  the  whole  farm  in 
February,  1884,  and  in  the  following  spring  put  up  works  for 
burning  charcoal  on  that  part  of  it  which  lies  south  of  the 
railroad.  They  used  this  lane  in  hauling  materials  from  the 
county  road  for  the  construction  of  these  works.  They  com- 
menced burning  charcoal  in  September,  1884,  and  hauled  it 
through  this  lane  to  the  county  road,  and  thence  to  their  fur- 
naces at  the  village  of  North  East.  This,  of  course,  occasioned 
an  increased  use  of  the  lane  and  crossing,  but  it  was  still  a 
private  lane  and  a  private  crossing.  The  proof  is  clear  and 
uncontradicted  that  since  the  purchase  of  the  farm  by  this 
company,  and  the  construction  of  these  works,  the  lane  "  was 
used  only  by  people  going  to  their  works  and  to  their  farm 
buildings."  One  of  the  witnesses  says  that  after  the  works 
were  put  up  and  there  was  so  much  hauling,  he  told  "  one  of 
the  oflScers  of  the  iron  company  that  the  railroad  company 
had  never  blown  any  whistle  at  this  crossing,  and  that  he 
ought  to  have  the  railroad  company  put  a  whistling-post  there, 
or  some  one  would  be  killed  there  some  day."  But  no  request 
for  a  whistling-post  was  ever  made,  nor  is  there  any  proof  that 
the  extent  of  the  increase  of  the  use  of  the  crossing  by  reason 
of  this  hauling  was  ever,  prior  to  this  accident,  brought  to  the 
knowledge  of  any  of  the  general  officers  of  the  company,  or  to 
any  of  its  agents  or  employees  engaged  in  the  running  of  its 
passenger  trains. 

The  fact  that  no  whistle  had  ever  been  sounded  for  this  cross- 
ing is  conceded.  Indeed,  the  plaintifif  himself  says  he  knew 
this  when  he  attempted  to  cross  the  tracks,  and  that  he  also 
knew  that  the  train  was  then  due.  The  engine-man  in  charge 
of  the  locomotive,  and  who  had  been  running  over  it  daily  for 


June,  1887.]     Philadelphia  etc.  R.  R.  Co.  v.  Fronk.        393 

more  than  twenty  years,  says  he  always  supposed  it  was  a 
farmer's  private  crossing;  that  he  knew  there  were  gates  there, 
but  cannot  say  whether  they  were  shut  on  this  occasion  or 
not;  that  he  never  saw  any  one  on  the  crossing  before;  that 
he  has  seen  the  gates  shut  and  cattle  in  the  lane,  and  has  also 
seen  wagons  standing  below  the  crossing,  and  supposed  it  was 
used  for  the  charcoal-works;  that  his  orders  were  to  whistle  at 
posts,  and  at  other  times,  for  danger.  It  also  appears  there  was 
no  fault  on  his  part  or  that  of  his  fireman  in  not  keeping  a 
proper  lookout  for  persons  on  the  track  or  for  danger,  and  that 
as  soon  as  he  discovered  the  dangerous  position  of  the  wagon, 
he  did  everything  practicable  to  avoid  the  collision.  The  train 
was  running  at  a  high  but  not  unusual  rate  of  speed  for  ex- 
press passenger  trains  between  large  cities.  It  was  cloudy, 
smoky,  and  foggy  on  the  morning  of  the  accident,  so  that  the 
view  of  an  approaching  train  was  not  so  good  as  in  clear 
weather,  but  there  was  no  sharp  curve  in  the  line  of  the  road 
as  it  approached  this  crossing,  and  the  engine-man  had  the 
right  to  assume  that  any  one  attempting  to  use  it  in  such  a 
state  of  the  atmosphere  would  not  do  so  without  first  ascer- 
taining that  his  train  had  passed,  or  was  so  far  distant  as  to 
make  the  crossing  absolutely  safe.  Besides,  such  a  state — 
cloudy,  foggy,  and  smoky  weather — must,  in  the  nature  of 
things,  have  often  occurred  before. 

These  are  what  we  find  to  be  the  undisputed  facts.  It  is 
therefore  the  case  of  a  private  crossing  in  the  open  country, 
guarded  by  gates  on  either  side,  where  there  was  no  station  for 
passengers  or  freight,  nor  any  side-track,  and  where  no  trains 
ever  stopped;  where  for  more  than  twenty  years  no  whistle 
had  ever  been  sounded,  nor  whistling-post  put  up,  nor  any  re- 
quest therefor  made  by  the  owners  of  the  property  entitled  to 
use  the  crossing;  and  where  the  line  of  the  railroad  on  either 
side  was  nearly  straight.  In  many  of  the  states,  as  well  as  in 
this,  statutes  have  been  passed  requiring  railroad  companies 
to  have  flagmen  at  grade-crossings,  or  to  whistle  or  give  other 
signals  at  such  places,  but  in  every  instance  brought  to  our 
attention  they  relate  to  public  crossings.  No  statute  that  we 
are  aware  of  has  ever  made  such  a  requirement  in  the  case  of 
a  private  farm-crossing  in  the  open  country  and  not  near  to 
any  village  or  city. 

Nor  have  we  found  or  been  referred  to  any  case,  either  in 
this  country  or  in  England,  in  which  it  has  been  decided  that 
the  failure  to  whistle  at  a  croRsing  like  this  is  evidence  to  go 


894         Philadelphia  etc.  R.  R.  Co.  v.  Fronk.     [Maryland, 

to  the  jury  of  culpable  negligence  on  the  part  of  a  railway 
company.  Counsel  for  the  appellee  has  cited  a  large  number  of 
cases,  but  they  all  differ  widely  in  their  circumstances  from 
this.  One  case  specially  relied  on  (and  it  illustrates  all  the 
others)  is  that  of  Barry  v.  New  York  etc.  R.  R.  Co.,  92  N.  Y.  289; 
44  Am.  Rep.  377.  In  that  case,  a  boy  ten  years  of  age  was 
killed  while  crossing  the  defendant's  track,  in  the  city  of  Troy, 
at  a  place  where  the  public  had  been  in  the  habit  of  crossing 
for  more  than  thirty  years,  and  where  several  hundred  persons 
crossed  daily,  with  the  knowledge  and  acquiescence  of  the 
company.  The  train  which  inflicted  the  injury  was  backing 
up  without  ringing  a  bell,  or  giving  any  other  signal  of  its  ap- 
proach, in  charge  of  a  brakeman  who  was  standing  on  a  plat- 
form between  two  cars,  where  he  could  not  see  persons  on  the 
track,  or  have  notice  to  apply  the  brakes  in  case  of  danger; 
and  there  can,  we  think,  be  no  doubt  as  to  the  correctness 
of  the  court's  decision  that  the  evidence  in  that  case  justified 
the  submission  of  the  question  of  the  defendant's  negligence  to 
the  jury.  A  case  decided  by  the  house  of  lords,  Dublin,  Wick- 
low,  and  Wexford  R'y  Co.  v.  Slattery,  L.  R.  3  App.  C.  1155, 
was  also  relied  on.  There  the  accident  occurred  at  night, 
and  at  a  way-station  on  the  road.  The  party  had  crossed  the 
tracks  to  purchase  his  ticket,  and  on  his  way  back  was  caught 
and  killed  by  an  express  train.  It  was  a  rule  of  the  railway 
that  the  express  trains  should  always  sound  a  whistle  on  ap- 
proaching this  station.  The  defendant's  witnesses  swore  that 
the  whistle  was  sounded,  but  several  witnesses  for  the  plain- 
tiff swore  they  did  not  hear  it,  though  they  were  standing  in  a 
position  in  which  they  could  have  heard  it  if  it  had  been 
sounded.  In  this  state  of  conflicting  proof,  the  question  of 
negligence  was  left  to  the  jury,  and  this  ruling  was  affirmed 
by  a  majority  of  the  house  of  lords. 

These  are  the  strongest  cases  cited  by  counsel,  and  the  dif- 
ference between  them  and  the  case  at  bar  is  too  obvious  to 
need  comment.  More  like  it,  but  not  more  strong  for  the  de- 
fendant company,  is  our  own  case  of  Northern  Central  R^y  Co. 
v.  State,  Use  of  Burns,  54  Md.  115.  The  proof  in  that  case  was 
that  Mrs.  Burns  was  killed  while  crossing  the  tracks  near 
Wood  berry,  at  a  place  where  many  pedestrians,  going  to  and 
from  Baltimore,  were  accustomed  to  cross.  On  one  side  of  the 
tracks  was  the  gate  of  a  public  park,  which  these  pedestrians 
used;  and  on  the  other  a  foot-bridge  over  the  stream  to  the 
Woodberry  mills,  which  they  also  used     There  was,  however. 


June,  1887.]     Philadelphia  etc.  R.  R.  Co.  v.  Fronk.        39& 

no  public  roadway  there,  nor  any  planks  convenient  for  cross- 
ing;  but  there  was  a  path  on  each  side  of  the  railroad.  She 
was  struck  by  a  train  going  to  Baltimore,  and  the  road  ap- 
proached the  place  on  a  curve.  The  ground  upon  which  neg- 
ligence was  imputed  to  the  company  was,  that  no  bell  was 
rung  or  whistle  sounded  when  the  train  approached  the  place 
of  the  accident.  The  proof  on  this  subject  was,  that  it  waa 
not  customary  to  give  any  such  signals  at  that  place,  unless 
some  one  was  seen  on  or  approaching  the  railway.  The  court 
described  the  place  as  being  in  the  "  open  country,"  and  held 
that  "  there  was  no  obligation  on  the  part  of  the  company  to 
give  the  signals  spoken  of,  and  negligence  cannot  be  imputed 
to  the  defendant  if  they  were  not  given";  and  that  it  was 
error  to  submit  the  case  to  the  jury  upon  the  undisputed  facts 
disclosed  by  the  proof.  They  said  that  the  plaintiff  had  failed 
to  offer  any  evidence  whatever  of  negligence  on  the  part  of  de- 
fendant's agents  in  charge  of  the  train  whereby  the  accident 
was  caused,  and  reversed  the  judgment. 

Upon  a  careful  consideration  of  the  facts  proved  (and  about 
which  there  is  no  dispute),  we  have  reached  the  same  conclu- 
sion in  this  case.  In  our  opinion,  the  defendant's  first  prayer 
should  have  been  granted.  This  is  conclusive  of  the  case,  and 
it  becomes  unnecessary  to  consider  the  defense  of  contributory 
negligence  on  the  part  of  the  plaintiff,  or  any  other  question 
argued  at  bar. 

Judgment  reversed. 

Obuoation  of  Ratleoad  Company  to  Givb  Wabnino  at  Crossings: 
See  Byrne  v.  New  York  etc.  R.  R.  Co.,  58  Am.  Rep.  512;  Ransom  v.  Chicago 
etc.  R'y  Co.,  61  Id.  718;  Chicago  etc.  R.  R.  Co.  v.  Boggs,  51  Id.  761;  Berry  v. 
New  York  etc.  R.  R.  Co.,  44  Id.  377;  Louisville  etc.  R.  R.  Co.  v.  Commonwealth, 
26  Id.  205,  note  207;  Pennsylvania  R.  R.  Co.  v.  Weber,  18  Id.  407;  Cleveland  etc 
R.  R.  Co.  V.  Crawford,  15  Id.  633;  Bell^ontaine  R'y  Co.  v.  Hunter,  5  Id.  201» 
note  216;  Pennsylvania  R.  R.  Co.  v.  BameU,  98  Am.  Deo.  346,  note  350» 
where  other  cases  in  that  series  are  collected. 

Duty  of  Person  Crossing  Railroad  to  Look  out  for  Train:  Se» 
Ormsbee  v.  Boston  etc  R.  R.  Co.,  51  Am.  Rep.  354,  note  360;  Pennsylvania 
R.  R.  Co.  V.  Weber,  18  Id.  407;  Cleveland  etc  R.  R.  Co.  v.  Crauj/ord,  15  Id. 
633;  Pennsylvania  R.  R.  Co.  v.  Beale,  13  Id.  753;  BelUfoniaine  R'y  Co.  v. 
Hunter,  6  Id.  201;  Contafe*  v.  New  York  etc  R.  R.  Co.,  98  Am.  Deo.  68» 
note  60,  where  other  cases  in  that  series  are  collected. 


396  Emmittsbueg  R.  R.  Co.  v.  Donoghue.     [Maryland, 

Emmittsburg   Kailboad   Compaxt   v.  Donoghue. 

f67  Mabyulmd,  888.] 

AOREEinSNT  BY  HOLDER  OF  SlNOLE  BiLL  TO  REUNQtTtSH  CrjkIM  TO  INTER- 
EST which  had  accrued  thereon,  and  to  accept  the  payment  of  the  prin- 
cipal in  fall  satisfaction  of  the  debt,  i!>  without  consixieration,  and  the 
debt  is  not  discharged. 

Iir  Action  to  Recover  Ixtxrest  Due  on  Single  Bill,  plea  that  defend- 
ant owed  plaintiff  the  single  bill  and  another  debt,  the  amount  of  which 
was  in  dispute,  and  that  in  performance  of  an  agreement  with  the  plain- 
tiff the  defendant  paid  the  face  of  the  bill,  and  also  the  amount  of  the 
other  debt  as  claimed  by  the  plaintiff,  without  further  dispute  or  delay, 
and  that  these  payments  were  accepted  by  the  plaintiff  in  full  settlement 
of  his  claims,  is  not  a  sufficient  defense  to  the  action. 

Action  to  recover  the  amount  of  interest  alleged  to  be  due 
on  a  single  bill.     The  opinion  states  the  case. 

James  McSherry,  for  the  appellant. 
Eugene  L.  Rowe,  for  the  appellee. 

By  Court,  Bbyan,  J.  To  an  action  on  a  single  bill,  the  de- 
fendant pleaded  six  pleas.  The  third  and  sixth  were  held 
bad  on  demurrer. 

The  third  plea  avers,  in  substance,  that  it  was  agreed  between 
the  plaintiff  and  the  defendant  that  if  the  plaintiff  would  re- 
linquish all  claim  to  the  interest  which  had  accrued  on  the 
principal  sum  due,  the  defendant  would  pay  said  principal  in 
full  satisfaction  of  the  debt,  and  that  in  accordance  with  the 
agreement  the  defendant  did  pay  said  principal  sum,  and  the 
plaintiff  thereupon  surrendered  to  him  the  writing  obligatory. 
The  interest  was  as  much  a  part  of  the  debt  as  the  principal, 
and  it  was  necessary  that  an  agreement  to  waive  it  should  be 
sustained  by  a  valuable  consideration.  The  agreement  was 
simply  a  contract  to  pay  a  portion  of  the  sum  due  in  satis- 
faction of  the  whole.  A  debt  cannot  be  discharged  in  thig 
way:  Jones  v.  Ricketts,  7  Md.  116,  and  many  other  cases. 

The  substance  of  the  sixth  plea  was  that  the  defendant 
owed  the  plaintiff  the  single  bill  in  question,  and  also  another 
debt,  the  amount  of  which  was  in  dispute,  and  that  in  fulfill- 
ment of  an  agreement  with  the  plaintiff  he  paid  the  amount 
of  the  single  bill  without  interest  (or,  as  stated  in  the  words 
of  the  plea,  the  face  of  the  bill),  and  also  the  amount  of  the 
other  debt  as  claimed  by  the  plaintiff,  without  further  or 
other  dispute  in  regard  to  the  last-mentioned  debt,  and  with- 
out further  delay  as  to  the  single  bill,  and  that  these  payments 


June,  1887.]    Emmittsburq  R.  C.  Co.  v.  Donoghue.  397 

were  accepted  by  the  plaintiff  in  full  settlement  of  his  claim. 
We  do  not  see  that  the  statements  in  the  plea  show  any  con- 
sideration for  giving  up  the  interest  due  on  the  single  bilL 
They  show  the  payment  of  another  debt;  if  the  defendant 
paid  no  more  than  was  due  on  this  other  debt,  he  gave  noth- 
ing that  would  be  a  consideration  in  the  view  of  the  law.  It 
is  not  alleged  that  more  was  paid  than  was  justly  due.  It  is 
undoubtedly  true  that  the  compromise  of  a  doubtful  claim  is 
a  valuable  consideration.  The  prevention  of  litigation  is  an 
object  highly  favored  by  the  law.  If  there  had  been  a  con- 
troversy about  this  second  claim,  of  which  the  issue  was  con- 
sidered by  both  parties  doubtful,  the  payment  of  the  claim  in 
full  would  have  been  a  valuable  consideration:  1  Parsons  on 
Contracts,  469. 

It  is  not  averred  in  the  plea  that  the  amount  due  was  doubt- 
ful, and  that  to  prevent  litigation  respecting  it  this  settlement 
was  made.  Merely  stating  that  the  amount  was  in  dispute  is 
a  very  different  thing.  In  Edwards  v.  Baughj  11  Mees.  &  W. 
641,  Lord  Abinger's  remarks  are  very  apposite.  "The  declara- 
tion alleges  that  certain  disputes  and  controversies  were  pend- 
ing between  the  plaintiff  and  the  defendant,  whether  the 
defendant  was  indebted  to  the  plaintiff  in  a  certain  sum  of 
money.  There  is  nothing  in  the  use  of  the  word  'contro- 
versy '  to  render  this  a  good  allegation  of  consideration.  The 
controversy  merely  is,  that  the  plaintiff  claims  the  debt,  and 
the  other  denies  it."  In  Addison  on  Contracts,  page  11,  in  a 
note,  we  find  these  passages:  "But  if  the  rights  of  a  claim- 
ant are  doubtful,  and  are  honestly  contested,  an  agreement 
on  the  part  of  the  debtor  to  pay  something,  and  on  claimant's 
part  to  accept  that  in  full,  is  valid,  so  far,  at  least,  as  the 
element  of  consideration  is  concerned."  "Thus  when  a  credi- 
tor and  his  debtor  entertain  doubts  of  the  validity  of  the  debt, 
and  make  an  honest  compromise  of  it,  a  note  given  by  the 
debtor  for  the  compromise  sum  agreed  on  cannot  be  contested 
as  lacking  consideration."  And  a  large  number  of  authorities 
are  cited.  On  page  12  it  is  thuti  stated:  "But  unless  the  debt  is 
unliquidated,  or  some  doubt  exists  as  to  the  exact  amount  due, 
a  promise  by  the  creditor  to  discharge  the  residue  on  receiving 
payment  of  part  is  nudum  pactum,  and  totally  inoperative, 
because  the  debtor  is  under  a  legal  obligation  to  pay  the 
whole  demand."  In  our  view  of  the  case,  this  plea  is  not  & 
Bufficient  defense  to  the  action 

Judgment  sflBrmed. 


898  Firemen's  Insurance  Co.  v.  Floss.     [Maryland, 

Whether  Payment  of  Less  Sum  Discharges  Debt:  See  Neat  v.  Hand- 
ley,  56  Am.  Rep.  784;  Gordon  v.  Moore,  51  Id.  606;  Weher  v.  Couch,  45  Id- 
274;  Schxodder  v.  Lang,  43  Id.  202;  Mitchell  v.  WheaUm,  33  Id.  24;  Ludding- 
ton  V.  Bell,  33  Id.  601;  Kromer  v.  ffeim,  31  Id.  491;  Young  v.  Jo7ies,  18  Id. 
279;  Savage  v.  Everman,  10  Id.  676;  Marvin  v.  T'reo^,  9  Id.  307;  Draper  v. 
/ri«,  5  Id.  292;  Z>t«er  v.  Brubaker,  91  Am.  Dec.  177;  Deland  v.  ^jc«,  87  Id. 
102;  Heam  v.  ^ie/t/,  80  Id.  472;  McDaniela  v.  Bank  of  Rutland,  70  Id.  406; 
Rose  V.  Hall,  68  Id.  402;  Leavitt  v.  Morrow,  67  Id.  334;  ybn«  v.  Perkins,  64 
Id.  136,  note  138,  where  this  subject  is  discussed  at  length. 


Firemen's  Insurance  Co.  of  Baltimore  v.  EYoss. 

[67  Maryland,  403.  J 

Iw  SxTTT  ON  Contract  with  Partnership,  It  must  Appear  that  All 
Who  Sue  were  Partners  at  the  time  of  making  the  contract.  One 
who  has  been  subsequently  admitted  as  a  partner  cannot  join  in  the  ac- 
tion, although  it  was  agreed,  as  between  the  partners  themselves,  that 
he  should  become  equally  interested  with  the  others  in  all  the  existing 
property  and  rights  of  the  firm,  unless  there  has  been,  after  the  accession 
of  the  incoming  partner,  a  new  and  binding  promise  to  pay  to  the  firm 
as  newly  constituted.  And  this  principle  applies  with  great  strictness 
where  the  contract  is  by  specialty. 

"Where  Policy  of  Insurance,  Containing  Covenant  that  Insurance 
should  Continue  and  be  in  force  from  the  expiration  of  the  time  men- 
tioned therein  for  its  duration  so  long  as  the  insured  or  their  assigns 
should  continue  to  pay  the  like  premium,  provided  such  premium  were 
actually  paid  to  the  company  and  indorsed  on  the  policy,  or  a  receipt 
given  therefor  by  the  company,  is  issued  under  seal  to  a  firm  then  com- 
posed of  two  members,  but  to  which  a  third  member  is  afterwards 
admitted  without  change  in  the  name  of  the  firm,  and  the  firm  so  con- 
stituted continues  to  pay  the  premium  as  covenanted  in  the  policj',  taking 
renewal  receipts  therefor  not  under  seal,  upon  the  happening  of  a  loss, 
the  firm  as  constituted  at  the  date  of  the  renewal  receipt  cannot  main- 
tain an  action  of  assumpsit  thereon.  But  such  firm,  so  constituted,  may 
maintain  such  an  action  on  another  renewal  receipt  given  by  the  same 
company,  where  the  policy  issued  to  the  firm  before  the  admission  of  the 
new  partner  contained  no  covenant  for  its  extension  from  year  to  year, 
but  expressly  declared  that  the  insurance  should  continue  for  the  term 
of  one  year,  and  no  longer.  And  want  of  notice  to  the  insurance  com- 
pany of  the  change  in  the  firm  cannot  aflFect  the  right  to  recover  in  that 
case. 

Ihsurance  Cobipany  will  be  Regarded  as  having  Waived  Objechons 
TO  Preliminary  Proofs  of  loss,  if  it  withholds  or  fails  to  disclose  such 
objections  beyond  a  reasonable  time  after  such  proofs  are  furnished,  or  if 
its  refusal  to  recognize  the  obligation  to  pay  is  placed  by  it  upon  other 
and  distinct  grounds  than  alleged  defects  in  the  preliminary  proofs. 

Assumpsit.     The  opinion  states  the  case. 

John  H.  Thomas  and  George  H.  Williams,  for  the  appellant 

Thomas  W.  Hall,  for  the  appellees. 


June,  1887.]     Fikemen's  Insurance  Co.  v.  Floss.  399 

By  Court,  Alvey,  C.  J.  The  two  appeals,  though  in  sepa- 
rate records,  by  and  against  the  same  parties,  were  argued 
together,  and  they  will  be  considered  together,  as  the  records 
in  both  cases  present  substantially  the  same  state  of  facts, 
and  upon  which  the  same  questions  were  raised  in  the  court 
below. 

The  plaintiflfs  below,  the  appellees  here,  constituting  a  part- 
nership under  the  name  of  S,  W.  Floss  &  Co.,  composed  of 
Simon  W.  Floss,  Henry  M.  Adler,  and  Benjamin  Cohen,  and 
being  the  holders  of  two  policies  of  fire  insurance,  issued  by 
the  defendants,  the  present  appellants,  sued  the  latter  in  two 
several  actions  of  assumpsit,  upon  two  several  renewal  re- 
ceipts; by  which  receipts,  as  it  is  alleged,  new  contracts  of 
insurance  were  made,  subject  to  the  same  terms  and  condi- 
tions as  the  original  contracts  of  insurance  stated  in  the  poli- 
cies. Both  policies  were  issued  under  the  corporate  seal  of 
the  defendants,  but  the  renewal  receipts  for  premiums  paid 
were  not  under  seal. 

The  first  policy.  No.  49,730,  was  issued  on  the  16th  of  April, 
1877;  and  the  second.  No.  51,716,  was  issued  on  the  15th  of 
April,  1878.  The  policies  were  each  for  an  insurance  of  $2,500 
on  a  stock  of  goods  for  one  year.  Other  policies  in  other  com- 
panies were  held  on  the  same  stock  of  ^oods  at  the  time  of 
the  fire,  which  occurred  on  the  30th  of  April,  1886;  the  aggre- 
gate amount  of  all  the  insurance  being  about  $75,000.  The 
total  amount  of  loss,  according  to  estimate,  was  $98,265.58. 
Notice  and  preliminary  proofs  of  loss  were  furnished  by  the 
plaintiffs  to  the  defendants  on  the  8th  of  May,  1886.  The 
defendants  refused  payment,  and  the  plaintiffs  brought  these 
actions. 

The  cases  were  tried  on  pleas  of  "  never  promised  as  alleged," 
"never  indebted  as  alleged,"  and  some  others,  alleging  fraud 
and  failure  to  furnish  legal  preliminary  proofs  of  loss,  such 
as  required  by  the  conditions  of  the  policies. 

On  the  trial,  the  policies,  with  the  several  annual  renewal 
receipts  attached  thereto,  were  read  in  evidence.  The  last 
of  such  receipts  attached  to  policy  No.  49,730  is  dated  April 
16,  1886,  and  the  last  attached  to  policy  No.  51,716  is  dated 
April  21,  1886.  It  was  then  admitted  that,  at  the  date  of  the 
policies,  the  firm  of  S.  W.  Floss  and  Company  consisted  of 
8.  W.  Floss  and  Henry  M.  Adler,  and  that  it  was  not  until 
the  I3th  of  January,  1882,  that  Benjamin  Cohen  became  a 
member  of  the  firm,  and  that  he  has  continued  a  member 


400  Firemen's  Insurance  Co.  v.  Floss.     [Maryland^ 

ever  since.     The  preliminary  proofs  of  loss,  furnished  by  the 
plaintiffs,  were  called  for  by  them  and  put  in  evidence. 

In  both  cases,  at  the  close  of  the  evidence,  the  defendants 
submitted  two  propositions  for  instruction  to  the  jury: 
1.  That  there  was  no  suflBcient  evidence  of  any  contract  be- 
tween the  defendants  and  the  plaintiff,  Benjamin  Cohen,  as 
one  of  the  members  of  the  firm  of  S.  W.  Floss  and  Company, 
to  entitle  the  plaintiffs  to  maintain  the  action,  and  that  the 
verdict  should  be  for  the  defendants;  2.  That  there  was  no 
sufiBcient  evidence  that  the  conditions  of  the  policy,  in  respect 
to  preliminary  proofs  of  loss,  were  complied  with  before  the 
institution  of  the  suit,  or  that  the  defendants  had  waived  the 
right  to  object  to  such  non-compliance. 

1.  Policy  No.  49,730  contains  a  covenant  of  the  defendants 
for  the  payment  of  the  amount  insured,  if  the  loss  or  damage 
insuied  against  was  sustained  within  the  term  of  one  year 
from  the  date  of  the  policy,  which  would  expire  at  noon  on 
the  16th  of  April,  1878;  and  the  defendants  further  covenanted, 
promised,  and  agreed  to  and  with  the  assured,  their  execu- 
tors, administrators,  and  assigns,  "that  this  insurance  shall 
continue  and  be  in  force  from  the  expiration  of  the  time  be- 
fore mentioned  for  its  duration,  so  long  as  the  said  assured,  or 
their  assigns,  shall  Qontinue  to  pay  the  like  premium  as  hath 
been  paid  for  this  insurance,  and  so  long  as  this  corporation 
shall  agree  to  accept  and  actually  receive  the  same  from  the 
assured  or  their  assigns;  provided,  that  a  premium  for  a  con- 
tinuance of  the  insurance  shall  be  actually  paid  by  the  assured 
or  their  assigns  to  this  corporation  before  the  day  limited  for 
the  termination  of  the  risk,  and  such  payment  indorsed  on 
this  policy,  or  a  receipt  therefor  given  by  this  corporation." 

The  insurance  was  regularly  continued  by  the  annual  pay- 
ments of  such  premiums  as  the  defendants  thought  proper  to 
demand,  and  renewal  receipts  were  given  as  required  by  the 
policy.  All  the  receipts  are  in  the  same  form,  and  the  last 
given  reads  thus:  — 

"  Baltimore,  April  16,  1886. 

"  Renewal  receipt  for  policy  No.  49,730.  Subject  to  condi- 
tions therein. 

"  Received  fifteen  dollars  from  S.  W.  Floss  &  Co.,  being  the 
premium  on  two  thousand  five  hundred  dollars,  on  merchan- 
dise (as  per  policy)  situate  at  818  West  Baltimore  Street,  in- 
sured by  the  Firemen's  Insurance  Company,  which  is  hereby 
continued  in  force,  and  will  terminate  at  twelve  o'clock,  noon, 
on  the  sixteenth  day  of  April,  1887." 


June,  1887.]     Firemen's  Insurance  Co.  v.  Floss.  40 J 

This  receipt  was  regularly  signed  by  the  clerk  of  the  com- 
pany, though  not  under  seal. 

It  is  an  established  principle  that  where  the  action  is  bjr 
several  plaintiffs  they  must  prove  either  an  express  contract 
by  the  defendants  with  them  all,  or  the  joint  interest  of  all  in. 
the  subject  of  the  suit.  If  the  contract  be  with  a  partnership; 
it  must  appear  that  all  who  sue  were  partners  at  the  time  of 
making  the  contract;  for  one  who  has  be^pn  subsequently  ad- 
mitted as  a  partner  cannot  join  in  the  action,  though  it  were 
agreed,  as  between  the  partners  themselves,  that  he  should! 
become  equally  interested  with  the  others  in  all  the  existing 
property  and  rights  of  the  firm ;  unless,  after  the  accession  of 
the  incoming  partner,  there  has  been  a  new  and  binding 
promise  to  pay  to  the  firm  as  newly  constituted:  Wilsford  v.. 
Wood,  1  Esp.  182,  183;  Ord  v.  Portal,  3  Camp.  239,  note;  Eg& 
V.  Kyle,  2  Watts,  222;  McGregor  v.  Cleveland,  5  Wend.  475;  2 
Greenl.  Ev.,  sec.  478.  And  this  principle  applies  with  great 
strictness  where  the  contract  is  by  specialty;  for  no  one  can 
be  joined  in  an  action  thereon  as  plaintiff  who  is  not  a  party 
thereto,  or  the  representative  of  such  party.  The  question 
therefore  is,  whether  the  policy  No.  49,730,  executed  by  the 
defendants  under  seal,  and  to  which  Cohen  was  not  a  party, 
constitutes  the  contract  of  insurance,  existing  at  the  time  of 
the  loss;  or  whether  the  last  payment  of  premium,  and  th& 
renewal  receipt,  constitute  a  now  contract  of  insurance  not 
under  seal,  and  to  which  Cohen  was  a  party,  with  reference  to 
the  previous  policy  for  the  purpose  only  of  making  such  new, 
contract  subject  to  the  terms  and  conditions  set  out  in  sucL 
policy.  If  the  policy  has  been  continued,  or  attempted  to  b& 
continued,  as  the  subsisting  contract  of  insurance,  Cohen,  not 
being  a  party  thereto,  could  not  be  joined  in  the  action  aa 
teo-plaintiff;  nor  could  assumpsit  be  maintained  by  the  partner-^ 
ship,  as  it  existed  at  the  date  of  the  policy,  for  the  loss  sus- 
tained. And  looking  to  the  terms  of  the  covenant  in  th& 
policy,  providing  for  the  continuance  or  extension  of  the  origin 
nal  contract  of  insurance,  and  keeping  the  policy  in  force,  w& 
are  of  opinion  that  this  action  cannot  be  sustained. 

This  case,  so  far  as  the  right  to  maintain  the  action  is  con- 
cerned, is  not  distinguishable  from  the  case  of  Baltimore  Fire 
Ins.  Co.  V.  McOowan,  16  Md.  47.  In  that  case,  the  policy  under 
seal  was  for  one  year  from  its  date,  and  contained  a  precisely- 
similar  covenant  for  the  continuance  in  force  of  the  insurance,, 
from  the  expiration  of  that  time,  as  that  contained  in  policy 

AM.  St.  Rep.,  Vol.  L— 26 


402  Firemen's  Insurance  Co.  v.  Floss.     [Maryland, 

No.  49,730,  which  we  have  recited.  The  renewal  receipt  was 
also  in  substantially  the  same  terms  as  the  renewal  receipts 
attached  to  the  policy  here.  There,  at  the  date  of  the  policy, 
the  firm  of  J.  McGowan  and  Sons  consisted  of  three  persons,  and 
at  the  date  of  the  renewal  receipt  it  consisted  of  only  two,  one 
of  the  members  having  in  the  mean  time  retired,  and  it  was 
held  by  this  court  that  the  renewal  receipt,  taken  under  the 
covenant  in  the  policy,  was  not  a  parol  new  contract  of  insur- 
ance with  the  remaining  members  of  the  firm,  upon  which  an 
action  of  assumpsit  could  be  brought;  but  that  the  covenant 
in  the  policy  contemplated  the  continuance  or  extension  of  the 
•contract  of  insurance  from  year  to  year,  as  a  specialty,  and 
not  as  a  parol  new  contract  of  insurance,  to  be  evidenced  by 
the  renewal  receipt;  and  therefore  an  action  of  assumpsit  could 
not  be  maintained.  That  is  exactly  the  case  here,  with  the 
•difierence  only  that  in  McGowan' s  Case,  supra,  a  member 
of  the  firm  had  retired  without  change  in  the  name  of  the 
firm,  while  in  this  case,  before  the  last  renewal,  there  had 
been  an  accession  of  a  new  member,  without  a  change  in  the 
name  of  the  firm;  so  that  neither  in  McGowan' s  Case,  supra,  nor 
:in  this,  were  the  members  of  the  partnership  the  same  at  the 
time  of  the  last  renewal  as  when  the  policy  was  issued.  It  is, 
however,  very  clear  that  all  the  renewal  receipts  attached  to 
the  policy  were  given  and  accepted  under  the  covenant  in  the 
policy,  and  with  a  view  to  a  continuation  or  extension  of  the 
original  contract  of  insurance,  as  therein  set  forth.  This  is 
eo  expressly  declared  on  the  face  of  the  receipts,  and  it  was 
with  that  understanding,  and  with  a  view  to  such  being  the 
oase,  that  the  plaintiffs  made  up  and  furnished  their  prelimi- 
nary proofs  of  loss.  There  was,  therefore,  no  new  contract  en- 
tered into  by  paying  the  premiums  and  taking  the  renewal 
receipts.  That  was  the  construction  in  the  McGowan  Case, 
supra,  and  that  decision  has  been  recognized  as  a  binding  au- 
thority in  subsequent  cases  in  this  court:  Mutual  Fire  Ins.  Co. 
V.  Deale,  18  Md.  52;  79  Am.  Dec.  673;  Shertzer  v.  Mutual  Fire 
Ins.  Co.,  46  Md.  510.  And  such  being  the  case,  it  follows  that 
there  was  error  in  refusing  to  grant  the  defendant's  first  prayer, 
in  the  case  based  upon  the  renewal  receipt  attached  to  policy 
No.  49,730. 

The  other  case,  brought  upon  the  last  annual  renewal  re- 
ceipt attached  to  policy  No.  51,716,  as  a  parol  contract  of  in- 
surance, is  governed  by  a  different  principle  from  that  of  the 
preceding  case.     Here  the  original  policy  contains  no  such 


June,  1887.]     Firemen's  Insurance  Co.  v.  Floss.  403 

covenant  for  extension  from  year  to  year  as  that  contained  in 
policy  No.  49,730.  The  policy  simply  provides  that  the  insur- 
ance should  continue  for  the  term  of  one  year  from  its  date, 
and  expressly  declares  that  it  should  continue  no  longer.  The 
policy,  therefore,  as  a  specialty,  did  not  admit  of  a  continua- 
tion or  extension  from  year  to  year,  by  any  mere  parol  con- 
tract. The  renewal  receipts  attached  are  all  in  the  same  form, 
and  refer  to  the  policy  by  number,  and  declare  on  their  face 
that  the  insurance  was  thereby  continued  in  force  for  the  en- 
suing year.  But  these  receipts,  not  being  under  seal,  could 
not  have  the  effect  of  re-executing  the  policy,  and  continuing 
it  in  force  as  a  specialty,  for  the  several  periods  covered  by 
the  receipts.  The  receipts  must  be  taken  as  evidence  of  new 
parol  contracts  for  insurance,  made  with  reference  to  the 
pre-existing  policy,  and  subject  to  the  terms  and  conditions 
therein  contained.  Such  receipts  are  both  contracts  and  re- 
ceipts; and  so  far  as  they  are  treated  as  contracts,  they  are 
regarded  as  having  been  made  upon  the  same  consideration 
and  representation  as  the  original  contract,  embraced  in  the 
policy  referred  to;  and  wherever  any  changes  are  intended  to 
be  made  in  the  terms  or  conditions  of  the  original  contract, 
such  changes  should  be  expressed  in  the  renewal  receipt. 
This  is  the  principle  as  settled  by  numerous  cases  upon  the 
subject,  and  this  court  has  fully  recognized  that  principle 
in  the  cases  of  Mutual  Fire  Ins.  Co.  v.  Deale,  18  Md.  52; 
79  Am.  Dec.  673;  and  Shertzer  v.  Mutual  Fire  Ins.  Co.,  46 
Md.  510. 

It  is  insisted,  however,  that  the  defendants  should  not  be 
held  bound,  even  though  the  contract  is  evidenced  by  the  re- 
newal receipt,  and  therefore  to  be  treated  as  a  parol  contract  of 
insurance,  because  of  the  want  of  notice  of  the  fact  that  the  firm 
of  the  plaintiffs  had  been  changed  by  the  introduction  of  Cohen 
as  a  partner  since  the  issuance  of  the  original  policy.  But  to 
this  we  cannot  accede.  We  know  of  no  principle  that  re- 
quires, or  authoritative  case  that  holds,  that  notice  in  such 
case  should  be  shown  as  a  condition  upon  which  the  plain- 
tiffs could  recover.  It  is  not  shown  nor  pretended  that  there 
was  any  misrepresentation  on  the  part  of  the  plaintiffs  as  to 
the  membership  of  the  firm;  nor  is  it  pretended  that  the  de- 
fendants were  misled  or  deceived  in  any  respect  in  regard  to 
the  composition  of  the  partnership.  The  parol  contract  of 
insurance  sued  upon  was  made  with  the  firm  of  S.  W.  Floss 
&  Co.,  and  that  partnership  name  represented  all  the  mem- 


404  Firemen's  Insurance  Co.  v.  Floss.     [Maryland, 

bers  of  the  partnership  at  the  date  of  the  contract;  and  the 
defendants  must  be  taken  to  have  contracted  with  the  partner- 
ship as  then  constituted.  Any  other  principle  would  lead  to 
the  greatest  uncertainty  and  diflBculty  in  the  dealings  as  be- 
tween the  partnership  and  third  parties.  Moreover,  by  the 
terms  of  the  original  contract,  to  which  the  subsequent  parol 
contract  is  made  subject,  assignment  of  that  contract,  or  of 
an  interest  therein,  was  permissible,  with  the  consent  of  the 
insurance  company;  and  the  new  parol  contract  made  with 
the  existing  partnership  for  a  continuance  of  the  risk  must 
be  construed  as  consent  given  on  the  part  of  the  defendants 
to  accept  Cohen,  the  incoming  partner,  as  one  of  the  assured. 
In  this  case,  therefore,  the  court  below  was  correct  in  refusing 
the  first  prayer  of  the  defendants. 

2.  The  next  question  raised  relates  to  the  preliminary 
proofs  of  loss,  alleged  to  be  defective  for  non-compliance  with 
the  requirements  of  the  contract.  The  statement  of  particu- 
lars of  loss  were  signed  and  sworn  to  by  Adler  alone,  one  of 
the  firm,  the  other  two  partners  failing  to  sign  or  swear  to 
such  statement.  By  one  of  the  conditions  of  the  policies  in 
these  cases,  parties  insured  are  required  to  render  to  the  com- 
pany within  a  reasonable  time  a  full  and  particular  account 
of  their  loss,  and  such  statement  "  to  be  signed  by  their  own 
hands,  and  verified  by  their  oath  or  affirmation."  Whether 
this  provision  requires,  in  all  cases  and  under  all  circum- 
stances, each  and  every  person  interested  in  a  loss,  covered 
by  the  policy,  to  sign  and  swear  to  the  preliminary  statement 
of  loss,  is  a  question  not  free  of  difficulty,  but  which  we  need 
not  decide  in  this  case;  as  we  are  clearly  of  opinion  that  the 
right  to  take  advantage  of  any  defects  or  irregularities  in 
such  preliminary  statement  or  proofs  of  loss  has  been  waived 
by  the  defendants.  The  fire  occurred  on  the  30th  of  April, 
and  the  statement  of  loss  was  furnished  on  the  8th  of  May 
following.  The  receipt  of  this  statement  of  loss  was  acknowl- 
edged by  the  defendants  by  letter  dated  the  29th  of  May,  1886, 
in  which  the  plaintifi's  were  informed  that  the  company  was 
not  then  prepared  to  say  whether  the  statement  was  satisfac- 
tory, or  if  unsatisfactory,  in  what  respect.  It  is  not  shown 
that  any  objection  whatever  was  ever  taken,  before  suit 
brought,  to  the  statement  for  what  are  alleged  as  defects 
therein.  But,  on  the  contrary,  the  refusal  to  pay  was  placed 
on  totally  different  ground.  So  late  as  July  12th,  Adler,  one 
of  the  plaintiffs,  called  upon  the  president  of  the  defendant 


June,  1887.]     Firemen's  Insorance  Co.  v.  Floss.  405 

company,  and  demanded  payment  of  the  amount  alleged  to 
be  due,  when  he  was  informed  by  the  president  that  the  com- 
pany would  not  pay,  because,  as  he  declared,  the  loss  was  un- 
questionably occasioned  by  an  incendiary  fire.  If  defect  in 
preliminary  proof  had  been  made  the  ground  of  objection  to 
payment,  the  supposed  defect  should  have  been  pointed  out, 
so  that  the  plaintiffs  could  have  had  an  opportunity  to  make 
the  necessary  correction. 

Good  faith  requires  of  an  insurance  company  frank  and 
open  dealing  with  the  assured,  and  if  there  be  any  withhold- 
ing or  failure  to  disclose  objections  to  preliminary  proofs,  be- 
yond a  reasonable  time  after  they  are  furnished,  or  if  refusal 
to  recognize  the  obligation  to  pay  be  placed  upon  other  and 
distinct  grounds  than  alleged  defects  in  preliminary  proofs, 
the  company  will  be  regarded  as  having  waived  all  objection 
that  could  otherwise  have  been  taken  to  such  preliminary 
proofs  as  furnished.  Here  the  failure  to  make  known  the  ob- 
jection, notwithstanding  the  lapse  of  time;  the  fact  that  the 
defendants  had  themselves,  with  others,  instituted  an  investi- 
gation into  the  circumstances  and  extent  of  the  loss;  and  the 
placing  the  refusal  to  pay  upon  other  and  distinct  grounds 
than  the  want  of  sufficient  preliminary  proofs, — furnish  the 
amplest  ground  for  holding  all  objection  to  such  proofs  to  have 
been  waived  by  the  defendants.  If  authorities  for  this  propo- 
sition be  needed,  it  is  only  necessary  to  refer  to  Allegre  v.  Md. 
Ins.  Co.,  6  Har.  &  J.  408,  412,  413;  14  Am.  Dec.  289;  Fred. 
Co.  Mut.  Ins.  Co.  V.  Deford^  38  Md.  404;  Rokea  v.  Amazon  Ins. 
Co.,  51  Id.  520;  34  Am.  Rep.  323;  Planters'  Mut.  Ins.  Co.  v. 
Engle,  52  Md.  482;  May  on  Insurance,  2d  ed.,  sees.  468,  469. 
It  is  therefore  clear  the  court  below  committed  no  error  in  re- 
fusing to  grant  the  second  prayer  of  the  defendants. 

Upon  the  whole,  the  result  is,  that  the  judgment  of  the 
court  below  in  the  case  No.  21,  on  the  docket  of  this  court, 
must  be  affirmed;  and  the  judgment  of  the  court  below  in  the 
case  No.  22,  on  said  docket,  must  be  reversed,  without  award 
of  new  trial. 

Judgment  in  No.  21  affirmed. 

Judgment  in  No.  22  reversed. 


I 


Waiver  of  Objections  to  Proof  of  Loss  by  Rktusiko  to  Pat  on  Somb 
Qthir  Groc.vd:  See  Kansas  Protective  Union  v.  WhiU,  69  Am.  Rep.  607; 
Boket  V.  Amazon  liia.  Co.,  34  M.  323;  Jones  v.  Mechanics'  F.  I.  Co.,  13  Id.  405; 
Clark  V.  New  England  M.  F.  !.  Co. ,  53  Am.  Dec.  44,  note  62,  where  other 
in  that  series  are  collected;  Ayres  v.  Ilartj'ord  F.  I.  Co.,  85  Id.  653.     Or 


406  Cover  v.  Stem.  [Maryland, 

by  failure  to  make  timely  objection:  Keeney  v.  Home  Ins.  Co.,  27  Am.  Rep. 
60;  Pratt  v.  New  York  C.  I.  Co.,  14  Id.  304;  Franklin  F.  I.  Co.  v.  Chicago  Ic* 
Co.,  11  Id.  469.  But  a  waiver  is  not  established  by  the  insurer's  having  re- 
ceived the  notice  without  objection,  giving  to  the  insured  directions  about 
making  out  a  statement  of  his  loss,  and  examinations  by  the  insurers'  agent 
respecting  the  nature  of  it:  Ti-ash  v.  State  F.  <fe  M.  I.  Co.,  72  Am.  Dec.  622, 
note  624. 

Objection  for  Want  of  Proper  Parties:  See  Prcrprietora  qf  M.  M.  v. 
Tellow  Jacket  8.  M.  Co.,  97  Am.  Dec.  510. 


Cover  v.  Stem. 

[67  Mabyi<ani>,  449.J 

Relation  of  Debtor  and  Creditor  must  be  Created  and  Subsist  va 
Lifetime  of  the  parties  to  an  instrument  in  order  to  make  it  a  valid 
obligation  for  the  payment  of  money,  though  the  time  of  payment  may 
be  deferred  until  after  the  death  of  one  of  the  parties. 

Instrument  in  Following  Form  is  Testamentary  in  Character,  and 
not  an  obligation  for  the  payment  of  money,  and  no  recovery  thereon  can 
be  had  against  the  executor:  "Md.,  September  4, 1884.  At  my  death, 
my  estate  or  my  executor  pay  to  July  Ann  Cover  the  sum  of  three  thou- 
sand dollars.  David  Engel,  of  P.  [Seal]  Witness:  Columbus  Cover," — 
although  it  was  delivered  to  the  person  to  whom  payment  was  directed 
to  be  made.  And  its  construction  cannot  be  affected  by  the  fact  that  it 
must  fail  of  effect  as  a  testamentary  paper,  because  of  insufficient  wit- 
nesses under  the  statute. 

Debt.    The  opinion  states  the  case. 

James  A.  C.  Bond  and  William  H.  Thomas,  for  the  appellant. 

Charles  B.  Roberts,  attorney-general,  for  the  appellee. 

By  Court,  Alvey,  C.  J.  This  is  an  action  of  debt  brought  by 
the  appellant  against  the  appellee  as  executor  of  David  Engel, 
deceased,  to  recover  the  sum  of  three  thousand  dollars,  alleged 
to  be  due  and  owing  by  virtue  of  what  is  described  in  the 
declaration  as  a  writing  obligatory,  made  and  delivered  by 
the  appellee's  testator,  on  the  fourth  day  of  September,  1884. 

The  declaration  contains  several  counts,  all  founded  upon 
the  supposed  writing  obligatory;  and  which  writing  was  filed 
with  the  declaration,  and  by  agreement  is  incorporated  in  and 
made  part  of  the  declaration.  The  appellee  demurred  to  the 
entire  declaration,  and  the  court  below  sustained  the  demurrer, 
and  gave  judgment  for  the  defendant.  It  is  from  that  judg- 
ment that  this  appeal  is  taken. 


June,  1887.]  Cover  v.  Stem.  407 

The  instrument  declared  on  is  in  the  following  form:  — 

"  Md.,  September  4,  1884 
"At  my  death,  my  estate  or  my  executor  pay  to  July  Ann. 
Cover  the  sum  of  three  thousand  dollars. 
Witness:  "  David  Engel,  of  P.     [Seal]' 

"  Columbus  Cover." 

It  is  contended  on  the  part  of  the  appellant  that  this  instru- 
ment is  a  bill  obligatory,  and  imports  a  legal  obligation  of  the 
maker,  the  time  of  payment  only  being  deferred  until  after  his 
death,  when  his  administrator  or  executor  was  directed  to  pay 
the  amount.  While,  on  the  other  hand,  it  is  contended  by 
the  appellee  that  the  instrument  has  all  the  characteristics  of 
a  testamentary  paper,  and  did  not,  in  any  proper  sense,  create 
a  legal  obligation  upon  the  maker,  such  as  that  of  a  bond  or 
single  bill. 

What  the  consideration  may  have  been  to  induce  the  maker 
to  pass  such  an  instrument  does  not  appear.  But  it  is  insisted 
that  the  seal  to  the  instrument  imports  a  sufficient  considera- 
tion for  the  obligation  of  the  maker;  and  this,  as  a  general 
proposition,  is  certainly  true,  as  applied  to  bonds  and  deeds 
generally.  But  still  the  question  here  is,  whether  the  instru- 
ment declared  on  be  in  its  nature  a  bill  obligatory,  binding 
and  conclusive  upon  the  maker,  or  whether  it  be  a  mere 
posthumous  disposition  of  three  thousand  dollars,  part  of  his 
estate,  to  be  paid  by  his  executor,  as  any  other  pecuniary 
legacy  given  by  the  testator. 

An  obligation  is  defined  to  be  a  deed  in  writing,  whereby  one 
man  doth  bind  himself  to  another  to  pay  a  sum  of  money,  or 
do  some  other  thing:  Shep.  Touch.,  tit.  Obligation,  p.  367. 
The  same  definition  is  given  in  Com.  Dig.,  tit.  Obligation,  B, 
and  in  Bac.  Abr,,  tit.  Obligation,  B.  It  is  true,  no  precise 
form  of  words  is  necessary  to  create  a  bond  or  obligation. 
Therefore,  any  memorandum  in  writing,  under  seal,  whereby  a 
debt  is  acknowledged  to  be  owing,  will  obligate  the  party  to 
pay;  for  it  is  said  that  any  words  which  prove  a  man  to  be  a 
debtor,  if  they  be  under  seal,  will  charge  him  with  the  pay- 
ment of  the  money:  Core's  Case^  Dyer,  226;  Sliep.  Touch.  368— 
370;  and  Bac.  Abr.,  tit.  Obligation,  B,  and  the  examples  there 
given  of  what  form  of  words  will  be  suflicient  to  create  a  valid 
obligation.  It  is,  however,  laid  down  in  Bac.  Abr.,  tit.  Obliga- 
tion, B,  as  essentially  necessary  to  create  a  valid  obligation 
that  words  be  employed  to  declare  the  intention  of  the  party, 
and  which  must  clearly  denote  his  being  bound;  "becausa 


408  Cover  v.  Stem.  [Maryland, 

such  obligation  is  only  in  the  nature  of  a  contract,  or  a  secu- 
rity for  the  performance  of  a  contract,  which  ought  to  be  con- 
strued according  to  the  intention  of  the  parties."  In  other 
'words,  there  must  be  terms  employed  to  create  a  debitum  in 
prsesentij  though  the  solvendum  may  be  in  futuro,  and  even 
after  the  death  of  the  obligor.  It  would  seem  to  be  clear  that 
the  relation  of  debtor  and  creditor  must  be  created  and  subsist 
in  the  lifetime  of  the  parties  to  the  instrument,  though  the 
time  of  payment  may  be  deferred  until  after  the  death  of  one 
of  the  parties:  Shep.  Touch.  368, 369;  Hannon  v.  State,  9  Gill, 
440;  Carey  v.  Dennis,  13  Md.  1;  Story  on  Promissory  Notes, 
eec,  27, 

Here,  in  the  instrument  before  us,  there  are  no  words  that 
create  a  debitum  in  prassenti;  there  are  no  words  that  create  the 
relation  of  debtor  and  creditor  in  the  lifetime  of  the  parties  to 
the  instrument;  but  the  words  employed  simply  import  a 
posthumous  disposition  of  a  part  of  the  estate  of  the  maker  of 
the  instrument,  and  nothing  more. 

This  case  is  not  substantially  distinguishable  from  the  case 
of  Byers  v.  Hoppe,  61  Md.  206;  48  Am.  Rep.  89.  In  that  case, 
Hoppe,  the  writer  of  the  letter  to  Ann  Byers,  the  party  to 
whom  the  letter  was  addressed  and  delivered,  said:  "Ann, 
after  my  death,  you  are  to  have  forty  thousand  dollars;  this 
you  are  to  have,  will  or  no  will;  take  care  of  this  until  my 
.death."  That  was  declared  to  be  a  testamentary  paper;  and 
*he  only  real  distinguishing  feature  between  the  paper  in  that 
case  and  the  paper  in  this  is,  that  the  paper  in  the  former  was 
not  under  seal,  and  the  paper  in  this  case  is.  That,  however, 
can  make  no  substantial  distinction  in  determining  the  real 
character  of  the  instrument,  as  wills  are  more  frequently  ex- 
ecuted under  seal  than  otherwise.  Nor  can  the  fact  that  the 
instrument  was  delivered  to  the  party  to  whom  payment  was 
^directed  to  be  made  change  the  real  nature  of  the  instrument. 
.For  the  principle  is  well  settled  that  an  instrument  may  be  in 
the  form  of  a  deed,  signed,  sealed,  and  delivered  as  such,  and 
fitill,  if  it  be  apparent  that  the  party  intended  a  posthumous 
disposition  of  his  property,  the  instrument  not  being  operative 
Ainiil  after  his  death,  such  instrument  will  be  regarded  as 
testamentary. 

A  will  is  defined  to  be  any  instrument  whfereby  a  person 
«nakes  a  disposition  of  his  property  to  take  effect  after  his 
death.  By  the  terms  of  the  instrument  in  question,  the  three 
thousand  dollars  are  simply  directed  to  be  paid  out  of  his 


June,  1887.]    Clements  v.  Excavating  Apparatus  Co.      409 

estate  by  his  executor.  No  language  could  be  more  expressive 
of  a  testamentary  purpose.  And  this  court  has  declared,  in 
Carey  v.  Dennis,  13  Md.  17,  adopting  the  language  of  Mr. 
Justice  Buller,  in  Hahergham  v.  Vincent,  2  Ves.  Jr.  231,  that 
"  the  cases  have  established  that  an  instrument  in  any  form, 
whether  a  deed-poll  or  indenture,  if  the  obvious  purpose  is 
not  to  take  place  till  after  the  death  of  the  person  making  it, 
shall  operate  as  a  will.'' 

It  is  urged,  however,  in  argument,  that  as  the  instrument  in. 
question  was  made  since  the  act  of  1884,  chapter  293,  requiring 
at  least  two  witnesses  to  bequests  of  personal  estate,  it  is  in- 
effectual as  a  testamentary  paper,  because  it  has  but  one  wit- 
ness, and  therefore  it  should,  if  possible,  be  construed  to  have 
effect  as  a  bond  or  obligation.  But  whether  the  instrument 
shall  be  declared  a  valid  obligation,  or  to  have  a  testamentary 
character  only,  must  be  determined  from  the  terms  and  pro- 
visions of  the  instrument  itself:  Carey  v.  Dennis,  supra.  We 
have  shown  that  the  instrument  has  not  the  essential  terms 
to  create  a  dehitum,  personally  binding  the  deceased  in  his 
lifetime;  and  this  construction  cannot  be  affected  by  the  fact 
that  the  instrument,  being  testamentary  in  its  character, 
must  fail  of  effect,  because  of  insuflBcient  witnesses  under  the 
statute. 

It  follows  that  the  judgment  of  the  court  below  must  be 
aflfirmed. 

Judgment  affirmed. 

Whether  Instrument  is  Contract  or  Will,  What  Determines:  See 
Oamness  v.  Rushton,  15  Am.  Rep.  759;  Towle  v.  Wood,  49  Id.  326;  Schumaker 
V.  Sdimidt,  4  Id.  135;  Burlington  University  v.  Barrett,  92  Am.  Dec.  376, 
note  383,  where  other  cases  in  that  series  are  collected. 


Clements  v.  Odorless  Excavating  Apparatus  Co. 

[67  Maryland,  461.1 
Plaintitf  cannot  Recover  in   Action  for  Malicious  Prosecution  o» 
CrviL  Suit,  unless  he  produces  evidence  to  prove  that  the  suit  waa  in- 
stituted not  only  maliciously  but  without  probable  cause. 

fUDOMENT  of  CIRCUIT  CoURT  OF  UNITED  StATES,    OS    PrOOFS   TAKEN,    and 

after  argument  by  counsel,  awarding  the  complainant  an  injunction  to 
restrain  an  alleged  infringement  of  a  patent  right,  ought  to  be  oonsid- 
ered  conclusive  as  to  the  question  of  probable  cause,  although  the  judg* 
ment  was  reversed  on  appeal  to  the  supremo  court. 

Action  for  damages.    The  opinion  states  the  case. 


410       Clements  v.  Excavating  Apparatus  Co.     [Maryland, 

John  F.  Preston,  for  the  appellant. 
J.  Alexander  Preston,  for  the  appellee. 

By  Court,  Robinson,  J.  A  bill  was  filed  by  the  appellee  in 
the  United  States  circuit  court  for  the  district  of  Maryland 
against  the  appellant,  for  the  infringement  of  reissued  letters 
patent  granted  to  Lewis  R.  Keizer  for  an  apparatus  used  in 
cleaning  and  emptying  privies,  the  original  patent  having 
been  granted  to  Henry  C.  Bull.  The  appellant,  in  his  an- 
swer, denied  that  Bull  was  the  inventor  of  the  apparatus 
described  in  the  original  patent,  and  charged  that  the  reis- 
sued letters  patent  granted  to  Keizer  were  not  for  the  same 
invention  described  in  the  original  patent,  but  for  other  and 
different  inventions,  not  known  to  Bull  at  the  time  the  origi- 
nal patent  was  granted;  and  further,  that  the  said  reissued 
letters  patent  were  fraudulently  obtained,  and  that  the  speci- 
fications and  claims  were  fraudulently  enlarged  for  the  pur- 
pose of  including  other  and  subsequent  inventions.  The 
appellant  also  claimed  that  the  apparatus  or  machine  used 
by  him  was  constructed  in  accordance  with  letters  patent 
granted  to  Samuel  R.  Scharf  and  Jerome  Bradley. 

The  case  was  heard  on  bill,  answer,  and  proof,  and  the  cir- 
cuit court  (judges  Bond  and  Morris)  being  of  opinion  that 
the  machine  used  by  the  appellant  was  an  infringement  of  the 
reissued  letters  patent  granted  to  Keizer,  enjoined  the  appel- 
lant from  making,  using,  or  vending  said  machine  containing 
the  inventions  and  improvements  described  in  said  reissued 
letters  patent.  On  appeal  to  the  supreme  court  of  the  United 
States,  the  decree  below  was  reversed,  on  the  ground  that  the 
improvement  claimed  in  the  reissued  letters  patent  granted  to 
Keizer  was  but  an  expansion  of  the  Scharf  and  Bradley  im- 
provements. 

This  action  is  brought  by  the  appellant  to  recover  damages 
of  the  appellee  for  having  instituted  suit  in  the  United  States 
circuit  court  maliciously  and  without  probable  cause.  What- 
ever may  be  said  of  the  earlier  decisions,  it  is  quite  well  set- 
tled that  an  action  will  lie  in  some  cases  for  the  malicious 
prosecution  of  a  civil  suit  without  probable  or  reasonable 
cause,  although  there  is  some  conflict  as  to  the  cases  em- 
braced within  the  rule.  Such  suits  are  not,  however,  encour- 
aged, because  the  law  recognizes  the  right  of  every  one  to  sue 
for  that  which  he  honestly  believes  to  be  his  own,  and  the 
payment  of  costs  incident  to  the  failure  to  maintain  the  suit 


June,  1887.]    Clements  v.  Excavating  Apparatus  Co.      411 

is  ordinarily  considered  a  suflBcient  penalty.  In  McNamee  v. 
Minke,  49  Md.  122,  we  had  occasion  to  consider  the  law  in  re- 
gard to  such  actions,  and  the -court  said:  *' When  it  has  been 
attempted  to  hold  a  party  liable  for  the  prosecution  of  a  civil 
proceeding,  it  has  generally  been  in  cases  where  there  has 
been  an  alleged  malicious  arrest  of  the  person,  as  in  the  case 
of  Turner  v.  Walker,  3  Gill  &  J.  377,  or  a  groundless  and 
malicious  seizure  of  property,  or  the  false  and  malicious 
placing  the  plaintiff  in  bankruptcy,  or  the  like."  Now,  if  it 
be  conceded  that  a  bill  in  equity  by  the  appellee,  to  restrain 
the  appellant  from  using  an  apparatus  or  machine,  on  the 
ground  that  it  was  an  infringement  of  letters  patent  issued  to 
the  plaintiff,  comes  within  the  rule  thus  laid  down,  without, 
however,  so  deciding,  it  is  sufficient  to  say  there  was  no  evi- 
dence in  this  case  to  sustain  the  action.  To  entitle  the  appel- 
lant to  recover,  he  was  bound  to  offer  evidence  from  which  a 
jury  could  reasonably  find  that  the  bill  for  an  injunction  was 
instituted  by  the  appellee,  not  only  maliciously,  but  without 
probable  cause. 

Now,  what  was  the  evidence  relied  on  to  support  the  action? 
In  the  first  place,  the  appellant  offered  the  record  of  the  ap- 
peal from  the  decree  of  the  circuit  court,  and  the  decree  of  the 
supreme  court  reversing  the  same.  By  this  record,  it  appears 
that  the  injunction  proceeding  was  heard  by  the  circuit  court 
on  proof  taken  by  both  sides,  and  after  argument  by  counsel 
of  the  respective  parties,  that  court  was  of  opinion  that  the 
apparatus  used  by  the  appellant  was  an  infringement  of  the 
patent  rights  of  the  appellee.  It  was  the  deliberate  judgment 
of  a  court  of  competent  jurisdiction  that  there  was  not  only 
a  probable  cause  for  filing  the  bill  for  injunction,  but  that  the 
appellee  was  entitled  to  the  relief  prayed.  A  judgment  thus 
rendered  ought  to  be  considered  conclusive  as  to  the  question 
of  probable  cause,  although  it  was  reversed  on  appeal  by  the 
supreme  court;  otherwise  in  every  case  of  reversal  an  action 
would  lie  for  the  institution  of  the  original  suit. 

The  appellant  then  offered  in  evidence  the  record  in  a  suit 
brought  by  the  appellee  against  Thomas  Quillan  for  using  an 
apparatus  bought  by  him  of  the  appellant,  and  in  which  suit 
the  circuit  court  was  of  opinion  that  the  apparatus  thus  used 
was  an  infringement  of  the  patent  rights  of  the  appellee,  and 
then  proposed  to  show  that  the  decree  in  that  case  was  the 
result  of  fraud  and  collusion  between  the  appellee  and  Quillan. 
8o  in  a  suit  by  the  appellant  against  the  appellee,  for  the  ma* 


I 


412  Baptist  Church  v.  Shi\t:ly.         [Maryland, 

licious  institution  of  a  civil  proceeding,  the  jury  was  to  deter- 
mine the  merits  of  a  controversy  between  the  appellee  and 
another  party.  We  do  not  see  on  what  grounds  the  Quillan 
case  could  be  offered  in  evidence  in  this  suit,  because  it  was 
between  other  parties;  and  besides,  whether  brought  by  the 
appellee  in  good  faith  or  bad  faith,  it  did  not  tend  to  show 
that  the  bill  filed  against  the  appellant  was  without  probable 
cause.  And  in  addition  to  all  this,  the  appellant  in  his  an- 
flwer  to  the  injunction  suit  made  substantially  the  same  aver- 
ment in  regard  to  the  Quillan  case,  and  what  was  considered 
and  passed  upon  by  the  circuit  court. 

Finding  no  error  in  the  several  rulings  below,  the  judgment 
will  be  affirmed. 

Judgment  affirmed. 

Both  Malice  and  Want  of  Probable  Cattsb  must  bb  Peoved  to 
Sustain  Action  fob  Malicious  Prosecution  of  Civil  Suit:  See  Dickin- 
eon  V.  Maynardy  96  Am.  Dec.  379,  note  381;  Morton  v.  Young,  92  Id.  565, 
note  568;  Alexander  v.  Harrison,  90  Id.  431,  note  438,  where  other  cases  in 
that  series  are  collected. 

Action  for  Malicious  Prosecution  of  Civil  Suit  will  Lie,  although 
THERE  WAS  No  SEIZURE  OF  PERSON  OR  PROPERTY:  See  Eostin  V.  Bank  of 
Stockton,  56  Am.  Rep.  77;  McCardle  v.  McOinUy,  44  Id.  343,  note  346.  Con- 
tra: Wetmore  v.  MelUnger,  52  Id.  465.  And  in  such  case  the  plaintiff  is  en- 
titled to  recover  the  damages  sustained  by  him:  Lawrence  v.  Hagerman,  8 
Id.  674;  Cloasm  v.  Staples,  1  Id.  316. 

Probable  Cause,  What  is,  and  Evidencb  of:  See  Ross  v.  Inms,  85  Am. 
Dec.  373,  note  381,  where  other  cases  in  that  series  are  collected;  Johnson  v. 
Milkr,  50  Am.  Rep.  758;  BiUmg  v.  Ten  Eyck,  42  Id.  505;  Shaul  v.  Brown,  4 
Id.  151. 


EuTAW  Place  Baptist  Church  of  Baltimore  City 
V.  Shivelt. 

[67  Maryland,  493.J  ' 
Bequest  to  Church,  "Interest,  Income,  or  Proceeds  thereof  to  be  Ap- 
plied to  the  Sunday  School  belonging  to  or  attached  to  said  church," 
is  sufficiently  definite  and  certain  in  respect  to  the  objects  thereof,  and 
capable  of  being  enforced,  where  the  Sunday  school  is  shown  to  be  an 
integral  part  of  the  church  organization,  and  therefore  embraced  within 
the  scope  of  the  corporate  functions  and  work  of  the  choroh,  although 
such  Suuday  school  is  not  itself  a  corporate  body. 

Appeal.     The  opinion  states  the  case. 
James  Pollard^  for  the  appellant. 
Samuel  D.  Schmv^ker,  for  the  appellees. 


June,  1887.]       Baptist  Church  v.  Shively.  413 

By  Court,  Alvey.  C.  J.  George  Gelbach,  Jr.,  died  in  1880, 
and  by  his  will,  duly  admitted  to  probate,  among  other  be- 
quests, he  bequeathed  as  follows:  — 

"  I  give  and  bequeath  to  the  Eutaw  Place  Baptist  Church 
of  Baltimore  City,  the  sum  of  one  thousand  dollars,  the  in- 
come, interest,  or  proceeds  thereof  to  be  applied  to  the  Sun- 
day school  belonging  to  or  attached  to  said  church;  and  I  de- 
clare that  the  receipts  of  the  treasurer  of  said  church  or  cor- 
poration shall  be  a  sufficient  discharge  to  my  executors  for 
said  legacy." 

The  testator  was  a  member  of  the  church,  and  had,  by  hiff 
attention  and  contributions,  manifested  great  interest  in  the 
Sunday  school,  organized,  fostered,  and  maintained  by  the 
church  as  a  means  of  religious  education  for  the  young. 

The  corporate  title  of  the  church  is,  "  The  Trustees  of  the 
Eutaw  Place  Baptist  Church  of  Baltimore  City";  but  there  is 
no  question  raised  as  to  the  want  of  accuracy  in  the  designa- 
tion of  the  corporate  body  in  the  bequest.  The  identity  of  the 
legatee  is  unquestioned.  The  legislature  of  the  state,  by  act 
of  1882,  chapter  87,  gave  its  sanction  to  the  bequest,  as  re- 
quired by  the  constitution. 

If  the  bequest  had  simply  been  to  the  church,  without  ref- 
erence to  the  Sunday  school,  there  could  have  been  no  ques- 
tion of  its  validity,  and  the  church  could  have  applied  the 
fund  to  any  purpose,  and  to  promote  any  object,  within  the 
sphere  of  its  corporate  powers  and  functions  as  a  religious 
body.  But  it  is  contended  that  the  Sunday  school  is  an  unin- 
corporated body,  independent  of  the  church,  and  therefore 
without  legal  entity;  and  that  the  bequest  to  the  church  is  in 
trust  for  this  undefined  and  uncertain  body  of  individuals  that 
fluctuates  from  time  to  time  without  legal  succession,  and  con- 
sequently the  bequest  is  void  because  of  this  uncertainty  and 
want  of  legal  identification  of  the  objects  to  be  benefited  by 
the  bequest.     In  this  contention,  however,  we  do  not  concur. 

It  is  certainly  true,  as  contended  by  the  appellees,  that,  ac- 
cording to  the  law  as  settled  in  this  state,  a  bequest  to  trustees 
for  the  benefit  of  a  vague  and  indefinite  object  is  equally  as 
invalid  as  an  immediate  bequest  to  such  object;  as  in  neither 
case  could  the  right  to  the  enjoyment  of  the  fund  be  estab- 
lished and  enforced  by  any  particular  individual  or  individuals 
claiming  to  be  within  the  contemplation  of  the  bounty.  But 
is  this  bequest  one  of  that  description  ?     We  think  not. 

The  Sunday  school,  as  such,  is  not  an  incorporated  body^ 


414  Baptist  Church  v.  Shively.        [Maryland, 

it  is  true;  but  it  is  shown  to  be  an  integral  part  of  the  church 
organization,  and  therefore  embraced  within  the  scope  of  the 
corporate  functions  and  work  of  the  church.  The  church  is 
not  organized  simply  to  maintain  a  pulpit  that  its  members 
and  others  may  receive  instruction  from  that  source  alone. 
Other  means  of  religious  instruction  are  as  common,  and  are 
as  much  within  the  province  of  church  regulation  and  direc- 
tion, as  the  pulpit  itself.  Prominent  among  these  are  the 
Bible  class  and  the  Sunday  school.  Not  that  Bible  classes  and 
Sunday  schools  may  not  be  formed  and  maintained  indepen- 
dently of  any  church  control;  but  we  all  know  that  they  are 
ordinary  means  adopted  in  church  organizations  for  the  pro- 
motion of  religious  instruction.  And  that  being  so,  why  may 
not  the  incorporated  church  receive  aid  from  the  benevolent 
dispenser  of  charities  for  the  support  of  a  Sunday  school  or  a 
Bible  class,  as  well  as  for  the  support  of  the  minister  who 
teaches  from  the  pulpit?  Neither  Bible  class  nor  Sunday 
school  can  be  successfully  maintained  without  pecuniary  out- 
lay. Books,  fuel,  and  lights  are  among  the  necessary  things 
to  be  supplied;  and  if  the  necessary  expenses  be  not  otherwise 
provided,  they  must  be  raised  by  contributions  from  the  con- 
gregation. It  is  shown  that  this  particular  Sunday  school  has 
been  maintained  at  considerable  annual  expense  to  the  church. 

Mr.  Hiram  Woods,  an  active  member  of  the  congregation, 
was  examined  as  a  witness.  He  says  that  the  Sunday  school 
was  organized  simultaneously  with  the  formation  of  the  church; 
that  it  is  an  integral  part  of  the  church  organization;  that  it 
is  an  organization  in  the  church  and  part  of  it;  and  that  it 
it  has  no  organization  separate  from  the  church.  He  says, 
moreover,  that  the  work  of  the  Sunday  school  is  considered 
the  most  important  branch  of  the  church  work;  that  it  com- 
prehends the  religious  instruction  of  both  children  and  adults. 
Mr.  Joshua  Levering,  a  member  of  the  church,  one  of  its  trus- 
tees, and  superintendent  of  the  Sunday  school,  states  substan- 
tially the  same  facts.  It  is  thus  shown  that  the  relation  of 
this  Sunday  school  to  the  church  is  that  of  entire  dependence 
upon  the  church  organization  and  its  supervision  for  support 
and  control. 

This  court  has  held,  in  the  case  of  England  v.  Vestry  of  P. 
G.  Parish,  53  Md.  467,  that  a  bequest  of  a  sum  of  money  to 
the  vestry  of  a  particular  church,  to  be  invested,  and  the  an- 
nual interest  thereof  to  be  devoted  to  the  support  of  the  rector 
or  minister  for  the  time  being,  was  valid.     And  in  the  recent 


June,  1887.]       Baptist  Church  v.  Shively.  415 

case  of  Crisp  v.  Crisp,  65  Id.  422,  where  the  testator  gave  a 
sum  of  money  to  be  expended  in  the  erection  of  a  branch 
church,  such  branch  church  when  erected  to  be  conveyed  to  a 
certain  designated  church  organization,  as  the  parent  church, 
previously  incorporated  and  in  being,  and  of  which  the  testator 
was  a  member,  it  was  held  by  this  court  that  such  bequest  was 
valid  and  effectual.  And  as  the  bequests  in  those  cases  were 
regarded  as  sufficiently  definite  and  certain,  and  capable  of 
being  enforced,  we  can  perceive  no  reason  why  the  bequest  in 
this  case  is  not  equally  so. 

Nor  is  there  anything  in  the  case  of  Church  Extension  etc.  v. 
Smith,  56  Md.  362,  at  all  in  conflict  with  the  view  taken  of  the 
bequest  in  this  case.  In  that  case,  the  bequests  that  were  de- 
clared void  for  the  want  of  certainty  and  definiteness  in  the 
objects  to  be  benefited  were  quite  difierent  in  their  nature  and 
characteristics  from  the  bequest  involved  in  this  case.  There, 
one  of  the  bequests  was  to  "  the  trustees  of  the  Strawbridge 
Methodist  Episcopal  Church,  for  the  benefit  of  the  Ladies' 
Mite  Society  of  said  church,  situate,"  etc.  The  Ladies'  Mite 
Society  was  a  voluntary,  unincorporated  association,  and  the 
bequest  to  its  use  was  held  to  be  invalid,  because  of  the  diffi- 
culty and  uncertainty  in  determining  for  whose  benefit  the  gift 
was  intended.  And  so,  in  the  same  case,  in  regard  to  the  sum 
bequeathed  to  the  "  Church  Extension  of  the  Methodist  Epis- 
copal Church,  incorporated  by  the  state  of  Pennsylvania,  to  be 
used  as  part  of  the  '  Perpetual  Loan  Fund '  of  said  society, 
and  to  bear  the  name  of  the  '  Durham  Loan  Fund.' "  The 
objects  to  be  benefited  by  the  fund  thus  created  were,  accord- 
ing to  the  agreed  statement  of  facts,  "  the  necessitous  churches 
of  the  Methodist  Episcopal  Church,  erected  from  time  to  time 
within  the  limits  of  the  United  States  and  its  territories,"  etc., 
as  the  committee  in  charge  of  the  fund  might,  in  their  discre- 
tion, select.  That  bequest  was  held  void  for  want  of  certainty 
in  respect  to  the  objects  of  the  charity,  and  those  who  could 
have  standing  in  court  to  insist  upon  the  execution  of  the 
trust.     Such,  manifestly,  is  not  the  case  here. 

That  portion  of  the  decree  of  the  28th  of  March,  1887,  that 
declares  the  bequest  to  the  Eutaw  Place  Baptist  Church  of 
Baltimore  City  void,  will  be  reversed,  with  costs,  and  the  cause 
be  remanded. 

Decree  reversed  and  cause  remanded. 

DsvuKS  AND  Bbquksts  TO  Charftable  Uses,  whki«  Valid,  and  whbw 
Void  roR  UxcutTAiirrT:  S«e  Howe  v.  Wilton,  60  Am.  Rep.  226,  noU  Q30, 


416  Pablett  v.  Gdggenheimer.  [Maryland^ 

where  thia  subject  is  discussed  at  some  length;  Webster  v.  Morris,  57  Id. 
278;  Maught  v.  Oeizendanner,  57  Id.  352;  Fontaine  v.  Thompson,  56  Id.  588; 
Kent  V.  Dunham,  56  Id.  667;  Beardsley  v.  Selectmen  of  Bridgeport,  55  Id.  152; 
Mills  V.  Newberry,  54  Id.  213;  Hinckley  v.  Tliatcher,  52  Id.  719;  Coi<  v.  Cam- 
fitocit,  50  Id.  29;  Bamum  v.  Mayor  etc.  of  Baltimore,  50  Id.  219;  Quinn  v 
Sluelds,  49  Id.  141;  Ooodale  v.  Mooney,  49  Id,  334;  Sowers  v.  Cyrenius,  48  Id. 
418;  Prichard  v.  Thmipson,  47  Id,  9;  O'Hara  v.  Dudley,  47  Id.  63;  Fairfield 
V.  Latoson,  47  Id.  669;  itfa^/cc  v.  O'iVcirt,  45  Id.  765;  iWcAofo  v.  ylZfeTj,  39  li 
445,  note  453;  Simpson  v.  II'cfco»ic,  39  Id.  349;  Power  v.  Cassidy,  35  Id.  550; 
OwM  V.  Washington  Hospital  for  Foundlings,  29  Id.  605;  Clement  v.  Hyde,  28 
Id.  522;  American  Tract  Society  v.  Aiwater,  27  Id.  422;  ^rfye  v.  iS/nJ^A,  26  Id. 
424;  Grimes  v.  Harmon,  9  Id.  690;  Zeisweiss  v.  James,  3  Id.  558;  City  of  Phila- 
delphia V.  Oirard'a  Heirs,  84  Am.  Dec.  470,  note  478;  Beekman  v.  Bonsor,  80 
Id.  269,  note  286;  Oioena  v.  Missionary  Society  of  M.  E.  Church,  67  Id.  160,  not© 
184;  Urmey  v.  JToorfen,  59  Id.  615,  note  019,  collecting  other  cases  in  that 
series;  Bridges  v.  Pleasants,  44  Id.  94,  note  98  et  seq.,  where  this  question  is 
discussed  at  length. 


Paelett  v.  Guggbnheimer. 

[67  Maryland,  542.  J 

■PAKTY  Who  HA3  SniuLATBD  Another's  Tkade-makk  is  in  No  CONDinON 
TO  Complain  of  a  third  party  for  simulating  the  trade-mark  that  he  him- 
self is  using  in  fraud  of  the  original  owner's  rights. 

Bight  oe  Party  to  have  his  Trade-mark  Protected  is  Forfeited  by 
hia  stamping  upon  his  goods,  in  connection  with  such  trade-mark,  repre- 
sentations yrhich  are  untrue,  intended  to  mislead  the  public  into  a  be- 
lief that  his  goods  have  an  origin  other  than  the  true  one.  And  where 
such  forfeiture  has  once  been  declared  by  a  court  having  jurisdiction  of 
the  subject-matter  and  of  the  parties,  the  production  of  that  record  will 
be  sufficient  for  the  same  purpose  in  every  other  court.  While  he 
may  thereafter  continue  to  use  such  trade-mark,  his  right  of  exclusive 
use  is  gone  from  him  forever,  and  the  right  to  the  exclusive  use  which 
he  himself  cannot  assert,  no  other  person  can  assert  for  him. 

Where  First  Person  to  Use  Words  "Golden  Crown  "as  Trade-mark 
HAS  Forfeited  his  Riqht  to  the  exclusive  use  thereof,  another  person 
may  use  those  words,  in  connection  with  other  devices,  to  constitute  a 
trade-mark  of  his  own,  and  is  entitled  to  an  injunction  to  restrain  a 
third  person  from  infringing  such  trade-mark  by  using  an  imitation  of  it 
80  close  as  to  mislead  the  ordinary  purchaser,  there  being  convincing 
proof  that  the  similarity  is  the  result  of  design,  and  not  of  accident. 

Bill  o^  complaint  filed  by  the  appellants  against  the  ap- 
pellees, praying  that  an  injunction  might  issue  to  restrain  the 
defendants,  their  agents,  servants,  and  attorneys  from  manu- 
facturing or  selling  or  offering  for  sale  plugs  of  tobacco  of  the 
kind  described  in  the  bill,  having  affixed  thereto  the  designa- 
tory  marks  or  tags  entitled  the  "  Golden  Chain,"  or  any  other 
tags  or  marks  so  nearly  resembling  those  of  the  plaintiffs  filed 


June,  1887.]        Parlett  v.  Guggenheimer.  417 

with  the  bill  as  to  deceive  persons  purchasing  said  articles, 
until  the  matter  could  be  heard  and  determined  in  equity. 
The  bill  also  prayed  that  the  defendants  make  true  and  full 
disclosures  of  the  sales  made  by  them,  and  of  the  goods 
manufactured  by  them  in  imitation  of  the  plaintiffs'  goods, 
and  that  they  might  be  decreed  to  account  therefor  in  full. 
General  relief  was  also  prayed  for.  An  injunction  was  issued 
upon  the  bill.  The  defendants  answered,  issue  was  joined^ 
and  testimony  taken,  whereupon  the  court  dissolved  the  in- 
junction, and  dismissed  the  bill.     The  complainants  appealed. 

E.  J.  D.  Cross  and  John  K.  Cowen,  for  the  appellants. 

William  H.  Browne  and  William  P.  Whyte,  for  the  appellees. 

By  Court,  Stone,  J.  The  learned  judge  of  the  circuit  court 
of  Baltimore  City,  in  the  opening  of  his  very  lucid  opinion  in 
this  case,  says:  "  From  an  inspection  of  the  exhibits  filed  in 
this  case,  and  an  examination  of  the  testimony,  I  have  no 
doubt  that  the  trade-mark  adopted  by  the  defendants  is  a 
simulation  of  that  of  the  plaintiffs,  calculated  to  deceive  the 
ordinary  retail  purchaser;  and  I  think  the  testimony  further 
shows  that  the  simulation  was  designed  for  the  purpose  of 
enabling  the  defendants  to  put  their  goods  upon  the  market 
upon  the  reputation  previously  acquired  by  the  goods  of  the 
plaintiffs." 

To  the  vie^«  so  far  expressed  by  him  we  fully  assent;  but 
he  goes  on  to  say  that  while  that  is  so,  the  plaintiffs  are  not 
entitled  to  the  relief  they  ask,  because,  according  to  the  evi- 
dence, one  Lorin  Palmer,  of  Chicago,  long  before  the  plaintiffs 
used  the  trade-mark,  had  adopted  and  used  it,  and  therefore 
they  could  not  have  an  injunction  against  others  when  they 
themselves  were  liable  to  one  at  the  suit  of  Palmer.  From 
these  latter  views  we  are  compelled  to  dissent. 

One  defense  set  up  by  the  defendants  is  in  fact  a  qiuisi  ad- 
mission that  they  were  simulating  the  trade-mark  of  the  plain- 
tiffs, but  that  the  plaintiffs  were  simulating  the  trade-mark  of 
Palmer,  and  therefore  could  not  complain  of  them.  It  is  a 
plea  of  confession  and  avoidance,  but  it  still  would  be  a  good 
plea  if  sustained  by  the  proof;  for  if  the  evidence  does  show 
that  the  plaintiffs  were  committing,  by  the  use  of  their  trade- 
mark, a  fraud  on  Palmer,  they  are  in  no  condition  to  complain 
of  the  defendants'  fraud  on  them. 

The  appellants,  plaintiffs  below,  are  manufacturers  of  plug 

Am.  St.  Bxp.,  Vol.  I.  —  27 


418  Parlett  v.  Guggenheimer.  [Maryland, 

twist  chewing-tobacco,  and  their  trade-mark  consists  of  the 
^ords  "  Golden  Crown "  marked  on  the  boxes  in  which  the 
tobacco  is  packed,  and  in  addition,  four  tin  tags  of  a  particular 
eize,  shape,  lettering,  and  position  on  each  bar  of  the  tobacco, 
^nd  on  each  tag,  also,  the  words  "  Golden  Crown."  These  tin 
tags  form  a  very  important  part  of  the  plaintiffs'  trade-mark. 
The  tin  tag  device  was  adopted  to  prevent  frauds  on  the  retail 
purchaser,  who  could  then  be  sure  that  he  obtained  what  he 
wanted,  and  of  which  he  could  not  be  sure,  as  long  as  the 
trade-mark  was  only  on  the  top  of  the  boxes  in  which  the 
tobacco  was  packed. 

The  trade-mark  of  Palmer,  which  the  plaintiffs  are  charged 
•with  using,  are  the  words  "  Golden  Crown."  He  used  no  tin 
tags,  or  anything,  on  the  bars  of  tobacco,  but  only  used  his 
trade-mark  on  the  packages  of  manufactured  tobacco  and  on 
the  boxes  of  cigars. 

It  is  also  shown  that  Palmer  had  used  this  trade-mark  from 
1858,  long  before  the  adoption  by  the  plaintiffs  of  their  trade- 
mark, and  it  is  further  shown  that  the  plaintiffs  were  in  entire 
ignorance  of  its  use  by  Palmer  up  to  the  bringing  of  this  suit. 

It  also  appears  from  the  agreement  in  this  case  that  this 
Lorin  Palmer  brought  suit  about  1869  against  one  Harris  of 
Philadelphia,  claiming  that  Harris  was  simulating  his  trade- 
mark, and  seeking  a  court  of  equity  to  restrain  him.  Harris, 
in  his  answer,  admitted  the  imitation,  but  based  his  defense 
upon  the  fact  that  Palmer  had  no  standing  in  a  court  of  equity 
to  get  the  relief  he  asked,  because  he,  Palmer,  had  marked  on 
his  cigar-boxes  that  the  cigars  were  made  in  Havana,  when  in 
fact  they  were  not  made  there,  but  made  in  New  York,  and 
this  Palmer  admitted,  and  the  supreme  court  of  Pennsylvania 
decided  that  Palmer  was  not  entitled  to  relief. 

The  court  said  in  subslance,  in  that  case,  that  the  ground 
for  relief  for  simulating  trade-marks  was  the  promotion  of 
honesty  and  fair  dealing,  and  that  equity  would  not  extend  its 
protection  to  one  whose  case  is  not  founded  on  truth. 

It  appears  also  from  the  agreed  statement  of  facts  that 
Harris  has  continued  since  that  trial  to  manufacture  the  labels, 
and  has  not  been  disturbed  by  Palmer. 

Trade-marks  are  protected  by  courts  of  equity  for  two  reasons. 
One  is  to  secure  to  the  honest,  skillful,  and  industrious  manu- 
facturer the  legitimate  fruits  of  his  skill  and  industry,  and  the 
•other  to  protect  the  public  against  the  frauds  of  unprincipled 
vendors,  who  seek  to  pass  off  spurious  wares  as  those  of  estab- 


I 


June,  1887.]        Parlett  v.  Guggenheimer.  419 

lished  reputation  under  the  name  of  the  genuine  commodity: 
Upton  on  Trade-marks,  pp.  28,  29.  The  same  author  goes  on 
to  say  that  such  protection  is  only  afforded  the  honest  manu- 
facturer, and  that  where  a  person  seeks  by  representations 
which  are  untrue  (whether  forming  a  part  of  his  trade-mark 
or  not)  to  mislead  the  public  into  a  belief  that  his  commodi- 
ties have  an  origin  other  than  the  true  one,  he  is  entitled  to 
no  relief  against  any  one  who  may  see  fit  to  appropriate  it: 
Flavell  V.  Harrison,  19  Eng.  L.  &  Eq.  15;  Fetridge  v.  Welh, 
4  Abb.  Pr.  144.  In  this  last  case  the  judge  in  his  opinion 
says:  "  Those  who  come  into  a  court  of  equity,  seeking  equity, 
must  come  with  pure  hands  and  a  pure  conscience.  If  the 
Bales  made  by  the  plaintiffs  are  effected,  or  sought  to  be  by 
misrepresentation  and  falsenood,  he  cannot  be  listened  to 
when  he  complains  that,  by  the  fraudulent  rivalry  of  others, 
his  own  fraudulent  profits  are  diminished.  An  exclusive 
privilege  for  deceiving  the  public  is  assuredly  not  one  that  a 
court  of  equity  can  be  required  to  sanction.  To  do  so  would 
be  to  forfeit  its  name  and  character." 

From  these  and  many  similar  cases  which  might  be  cited, 
the  conclusion  is  irresistible  that  he  who  seeks  to  mislead  the 
public  and  to  palm  off  on  it  the  spurious  for  the  genuine  article 
under  the  guise  of  his  trade-mark,  or  coupled  with  it,  forfeits 
for  all  time,  not  his  right  to  use  his  trade-mark,  for  with  that 
the  courts  will  not  interfere,  but  his  right  to  have  that  trade- 
mark protected.  The  record  of  his  conviction  of  the  fraud  is 
the  conclusive  proof  of  it.  Courts  will  not  try  over  and  over  a 
question  that  has  been  settled  by  a  court  of  competent  jurisdic- 
tion over  both  the  person  and  subject-matter.  When,  therefore, 
the  supreme  court  of  Pennsylvania,  in  a  suit  begun  by  himself, 
decided  that  Palmer  had  forfeited  his  right  to  be  protected  in 
the  use  of  the  trade-mark  "  Golden  Crown,"  the  production  of 
that  record  will  be  sufficient  for  the  same  purpose  in  every 
other  court.  He  invited  the  issue,  he  was  duly  heard  upon  it, 
and  if  it  is  found  against  him  he  must  abide  the  consequence. 

Lorin  Palmer  is  not  himself  concluded  by  the  decision  in 
this  case,  as  he  is  no  party  to  this  suit,  and  we  would  very 
cheerfully  have  avoided  all  reference  to  him  or  his  case.  But 
the  defendants  have  thrust  him  forward  as  a  witness  upon 
whom  they  relied,  to  prove  that  he  had  the  exclusive  right  to 
the  trade-mark  "  Golden  Crown,"  and  the  plaintiffs  produced 
the  record  to  show  that  he  had  now  no  such  exclusive  right. 
That  record  we  are  bound  to  consider  and  give  to  it  its  legal 
effect 


420  Parlett  v.  Guggenheimer.  [Maryland, 

From  what  we  have  said,  it  is  apparent  that  in  our  opinion 
Lorin  Palmer  by  his  false  representations,  of  which  he  stands 
duly  convicted,  has  placed  himself  outside  the  pale  of  the  pro- 
tection of  a  court  of  equity,  in  any  exclusive  use  of  this  trade- 
mark. He  can  of  course  go  on  and  use  it  as  long  as  he 
pleases,  but  the  right  of  exclusive  use  is  gone  from  him  forever. 
If  Palmer  himself  could  not  be  successfully  heard  in  a  court  of 
equity  asserting  his  right  to  the  exclusive  use  of  this  trade- 
mark, certainly  the  defendants  cannot  successfully  assert  his 
right  for  him.  They  cannot  do  for  him  what  he  cannot  do  for 
himself,  and  their  plea  in  that  behalf  is  unavailing. 

We  have  been  discussing  heretofore  only  the  question  of  the 
right  of  the  plaintiffs  to  the  use  of  the  words  "Golden  Crown" 
as  a  trade-mark,  or  part  of  a  trade-mark,  and  shown  that  they 
have  that  right. 

But  the  defendants  have  not  used  the  words  "  Golden  Crown  " 
at  all.  "Golden  Chain  "  is  what  they  have  adopted  as  part  of 
their  trade-mark,  and  if  the  only  question  in  the  case  was 
whether  the  words  "Golden  Chain"  was  an  infringement  of 
the  trade-mark  of  "Golden  Crown,"  we  should  unhesitatingly 
Bay  it  was  not. 

But  the  words  "  Golden  Crown  "  and  "  Golden  Chain  "  only 
constitute  a  part  of  the  respective  trade-marks  of  the  plain- 
tiffs and  the  defendants.  The  tin  tags,  marked,  lettered,  and 
arranged  as  we  have  said,  constitute  the  most  material  part 
of  the  trade-mark  of  the  plaintiffs. 

The  infringement  complained  of  here  is  that  the  tobacco  of 
the  defendants  in  every  essential  particular  is  gotten  up  in 
imitation  of  the  plaintiffs,  and  that  the  imitation  is  so  close 
as  to  mislead  the  ordinary  purchaser.  The  exhibits  will  con- 
vince every  impartial  observer  that  such  is  the  fact,  and  the 
evidence  will  convince  any  impartial  judge  that  this  similarity 
is  the  result  of  design,  and  not  of  accident. 

The  law  applicable  to  cases  like  this  is  fully  stated  in  the 
case  of  McLean  v.  Fleming,  96  U.  S.  245;  and  an  extract  from 
the  opinion  in  that  case  will  cover  this. 

"  Much  depends,"  says  the  court,  "  in  every  case  upon  the 
appearance  and  special  characteristics  of  the  entire  device; 
but  it  is  safe  to  declare  as  a  general  rule  that  exact  similitude 
is  not  required  to  constitute  an  infringement,  or  to  entitle  the 
complaining  party  to  protection.  If  the  form,  contents,  words, 
or  the  special  arrangement  of  the  same,  or  the  general  appear- 
ance of  the  alleged  infringer's  device,  is  such  as  would  bo 


June,  1887.]        Paelett  v.  Guggenheimer.  421 

likely  to  mislead  one  in  the  ordinary  course  of  purchasing 
the  goods,  and  induce  him  to  suppose  he  was  purchasing  the 
genuine  article,  then  the  similitude  is  such  as  entitles  the  in- 
jured party  to  equitable  relief." 

Many  cases  might  be  cited  extending  and  amplifying  this 
doctrine,  but  we  will  content  ourselves  with  but  one  more  ex- 
tract, and  that  from  the  English  case  of  Or,  Ewing,  i&  Co.  v. 
Johnson  &  Co.,  L.  R.  7  App.  C.  219,  where  the  judge,  in  de- 
livering the  opinion  of  the  house  of  lords,  said:  "  No  man, 
however  honest  his  intentions,  has  a  right  to  adopt  and  use 
60  much  of  his  rival's  trade-mark  as  will  enable  any  dishonest 
dealer  into  whose  hands  his  goods  may  come  to  sell  them  as 
the  goods  of  his  rival." 

When  we  consider  that  the  article  chewing-tobacco  is  bought 
and  used  most  extensively  by  a  large  class  of  the  illiterate 
and  ignorant,  we  think  no  stronger  case  of  infringement  by 
simulation  than  this  can  be  found  in  the  books. 

The  decree  of  the  court  below  must  be  reversed,  and  the 
case  remanded,  that  an  injunction  may  issue  as  prayed,  and 
account  be  taken,  if  desired,  as  is  usual  in  such  cases. 

Decree  reversed  and  case  remanded. 

Tbade-mabk  —  Right  to  Use  of  when  Pkotectbd:  See  Pierce  v.  OuU- 
tard,  58  Am.  Rep.  1;  Ball  v.  Siegel,  56  Id.  766;  Armstrong  y.  Kldnhaua,  56 
Id.  894;  Rogers  v.  Rogers,  55  Id.  78;  Myers  v.  Kalamcaoo  Buggy  Co.,  52  Id. 
811;  Alexander  v.  Morse,  51  Id,  369;  Eggers  v.  Hink,  49  Id.  96;  Desmond's 
Appeal,  49  Id,  118;  Williams  v.  Brooks,  47  Id.  642,  note  648;  Selchowv.  Baker, 
45  Id.  169;  Royal  Baking  Powder  Co.  v.  Sherrell,  45  Id.  229;  Larrahee  r.  Lewis, 
44  Id,  735;  Morgan's  Sons  de  Co.  v.  Troxell,  42  Id.  294;  Insurance  Oil  Tank 
Co.  V.  Scott,  39  Id.  286,  note  290;  Olin  v.  Bate,  38  Id.  78;  Marshall  v.  Pink- 
ham,  38  Id.  756;  Shaver  v.  Sliaver,  37  Id.  194;  Lawrence  MJg.  Co.  v,  Lowell 
Hosiery  Mills,  37  Id.  362;  Hier  v.  Abrahams,  37  Id.  589;  Lichtensteinv.  Mellis, 
34  Id.  692,  note  593;  Robertson  v.  Berry,  33  Id.  328;  Dunbar  v.  Olenn,  24  Id. 
895;  Popham  v.  Cole,  23  Id.  22,  note  27;  Carmiehel  v.  Latimer,  23  Id.  481; 
Meneely  v.  Meneely,  20  Id.  489;  Olen  and  Hall  Mfg.  Co.  v.  HaXl,  19  Id.  278; 
Caswell  V.  Davis,  17  Id.  233;  Taylor  v.  Oillies,  17  Id.  333;  Olendon  Iron  Co.  v. 
Uhler,  15  Id.  599;  Wolfe  v.  BarneU,  13  Id.  Ill;  Burke  v.  Cassin,  13  Id.  204; 
Meriden  Brittania  Co.  v.  Parker,  12  Id.  401;  Newman  v.  Alvord,  10  Id.  588; 
Holmes  v.  Holmes  B.  d:  A.  Mfg.  Co.,  9  Id,  324;  Oillott  v.  Esterbrook,  8  Id. 
663;  Congress  Je  E.  8.  Co.  v.  High  R.  C.  S.  Co.,  6  Id.  82;  Candee  v.  Deere,  6 
Id.  126;  Clioynski  v.  Cohen,  2  Id.  476;  FalkirUmrg  v.  Lucy,  96  Am.  Dec.  76; 
Boardman  v.  Meriden  Brittania  Co.,  95  Id.  270,  note  277,  where  other  cases  in 
that  series  are  collected. 

MI8REPRESENTATI0S3,    INTENDED  TO   DECEIVE,    DeFEAT   RiGHT  OF  OWNER 

OF  Tradb-kark  to  Protection:  See  Siegert  v.  Abbott,  48  Am.  Rep.  101; 
Funkey.  Dreyftu,  44  Id.  413;  Connell  v.  Reed,  35  Id.  397;  Hennessy  v.  Wheeler, 
25  Id.  188,  note  101,  where  this  subject  is  discussed  at  length;  Laird  v.  Wilder, 
16  Id.  707;  Palmer  V.  HarrU,  100  Am.  Dec.  557. 


Cases 


SUPEEME  JUDICIAL  COUET 


ov 


MASSACHUSETTS. 


Lowell  v,  Strahan. 

[145  Massachosetts,  1.J 

Lbasb  of  "First  Floor  in  Building"  Includes  Outside  of  Front 
Wall  of  that  part  of  the  building,  -with  the  right  to  use  and  enjoy  the 
same  as  leased  premises,  in  the  absense  of  anything  to  the  contrary  in 
the  lease. 

Lessee's  Agreement  to  Allow  Third  Person  to  Place  Sign  upon  Out- 
side Wall  of  Leased  Building,  for  a  certain  time,  in  consideration  of 
an  annual  payment,  creates  a  license  merely,  and  is  therefore  not  a  breach 
of  a  covenant  not  to  underlet  any  part  of  the  premises. 

Actions  by  John  Lowell  and  others,  and  by  Augustus 
Lowell,  against  Thomas  Strahan.  The  first  action  was  for 
money  had  and  received,  brought  by  the  plaintiffs,  as  owners 
of  a  building,  against  the  defendant  as  lessee  of  a  part  thereof, 
to  recover  a  sum  of  money  which  the  lessee  had  received  from 
a  third  person,  whom  he  had  allowed  to  place  a  sign  upon  the 
outer  wall  of  the  building;  and  the  second  action  was  for  the 
breach  of  a  covenant  not  to  underlet,  brought  by  the  lessor, 
who  was  one  of  the  plaintiff's  in  the  first  action  against  the 
lessee.  It  was  agreed  that  the  plaintiff's  in  the  first  case  were 
the  owners  of  the  building,  and  that  the  second  case  should 
be  treated  as  though  the  lease  had  been  executed  by  all  the 
plaintiff's  in  the  first  one.  The  lease  was  of  "  the  first  floor 
and  front  part  of  basement  in  building  situate  on  the  north- 
easterly corner  of  Washington  and  Franklin  streets,  in  Bos- 
ton," for  the  term  of  four  years  and  eleven  months  from  Febru- 
ary 1,  1882.     It  contained  covenants  by  the  lessee  to  "  keep 

422 


June,  1887.]  Lowell  v.  Strahan.  42$ 

all  and  singular  tne  said  premises "  in  repair;  to  save  the 
lessor  harmless  "  from  any  claim  or  damage  arising  from  ne- 
glect in  not  removing  snow  and  ice  from  the  roof  of  the  build- 
ing, or  from  the  sidewalks  bordering  upon  the  premises  so 
leased  ";  and  not  to  "  assign  this  lease,  nor  underlet  the  whole 
or  any  part  of  the  said  premises."  The  lessor  reserved  the 
right  "at  seasonable  times  to  enter  into  and  upon  "  the  premises, 
to  examine  the  condition  thereof  When  the  defendant  took 
possession  under  his  lease,  there  was  a  sign  upon  the  outside 
of  the  front  wall  of  the  building,  between  the  floor  and  ceiling 
of  the  first  floor,  which  had  been  placed  there  by  a  firm  of 
third  persons,  with  the  consent  of  the  former  tenant  of  the 
building.  The  defendant  agreed  with  the  firm  to  allow  the 
sign  to  remain  upon  the  wall  until  February  1,  1886,  in  con- 
sideration of  an  annual  payment  of  $150.  The  defendant 
also  placed  two  signs  of  his  own  upon  the  same  wall,  and 
agreed  with  certain  other  persons  that  they  might  paint  an 
inscription  over  one  of  these,  in  consideration  of  $12.50  per 
month.  The  plaintifi's  requested  the  court  to  rule  that  the 
lease,  covering  only  certain  rooms  in  the  building,  gave  the 
lessee  no  rights  in  the  outside  of  the  walls,  except  the  right  to 
place  upon  them  such  a  sign  as  was  customary  and  reasonable 
for  his  own  business;  that  the  placing  of  other  signs  upon  the 
outside  of  the  walls  was  a  trespass  upon  the  property  of  the 
plaintiffs;  that  the  defendant,  having  leased  the  right  to  place 
signs  upon  the  walls,  and  received  rent  therefor,  Vvas  liable  to 
the  plaintifi's  for  the  sums  so  received;  and  that  the  agree- 
ments between  the  defendant  and  the  persons  who  placed  signs 
upon  the  walls  were  leases,  and  if  the  lease  of  the  defendant 
covered  the  outside  walls,  they  were  violations  of  his  covenant 
not  to  underlet.  These  rulings  were  refused,  and  the  court 
ruled  instead  that  the  outside  of  the  walls  in  question  was 
included  in  the  lease,  and  that  the  agreements  of  the  defend- 
ant with  the  persons  whom  he  allowed  to  place  or  retain  signs 
upon  the  walls  did  not  amount  to  an  underletting.  The  court 
ordered  judgment  for  the  defendant  in  both  actions,  and  re- 
ported the  cases  for  the  determination  of  this  court. 

A.  L.  and  F.  C.  Lowell,  for  the  plaintiflfs. 

A.  Hemenway  and  D.  F.  Kimhall,  for  the  defendant. 

By  Court,  W.  Allen,  J.(  We  think  that  the  outside  of  the 
front  wall  was  part  of  the  premises  demised  in  the  lease  of 


424  Lowell  v.  Strahan.  [Mass. 

the  first  floor  in  the  building^  If  the  language  had  been  used 
in  a  conveyance  in  fee-simple,  no  question  could  have  been 
made  that  the  walls  of  the  building  were  included.  Undoubt- 
edly, the  owner  of  a  building  might,  in  conveying  the  lower 
and  upper  portions  of  it  to  different  grantees,  except  the  out- 
side of  the  walls,  as  he  might  do  in  conveying  the  whole  build- 
ing to  one  grantee.  In  every  case  it  is  a  question  of  intention, 
found  in  the  language  used,  as  applied  to  the  subject-matter, 
and  construed  in  connection  with  the  whole  instrument.  A 
lease  for  years  by  indenture  diJ0Fers  from  a  deed  in  fee-simple, 
not  only  in  the  nature  of  the  estate  created,  but  also  in  the 
fact  that  the  instrument  of  demise  is  an  agreement  between 
the  parties  containing  mutual  covenants  affecting  their  rights 
in  the  premises.  The  words  of  description  used  should  be 
construed  in  view  of  these  considerations,  which  might  require 
a  different  meaning  to  be  given  to  them  from  what  would  be 
given  to  similar  words  in  a  conveyance  in  fee. 

The  words  "  first  floor "  in  the  building  are  equivalent  to 
"first  story  "  of  the  building,  and  naturally  include  the  walls. 
The  apparent  intention  is  to  separate  a  section  of  the  build- 
ing as  a  distinct  tenement.  The  words  "  first  floor "  define 
the  lower  and  upper  boundaries  of  this,  but  there  is  nothing 
to  fix  the  lateral  boundaries  except  the  boundaries  of  the  build- 
ing. In  this  respect  the  words  differ  somewhat  from  the  word 
"  room."  "  Floor  "  means  a  section  of  the  building  between 
horizontal  planes.  The  words  "  in  building  "  show  that  the 
section  is  of  the  whole  building,  and  not  of  a  part  of  it.  The 
word  "  room  "  includes  a  description  of  the  perpendicular  as 
well  as  of  the  horizontal  planes  which  bound  the  parcel  of  the 
house  described  by  it,  and  excludes  the  outside  of  lateral  walls, 
at  least  when  they  constitute  the  walls  of  another  room,  as 
clearly  as  the  words  "  first  floor  "  exclude  the  flooring  of  the 
story  above  it.  Under  what  circumstances  a  lease  of  a  story 
of  a  building  would  include  a  space  beyond  the  building  over 
land  belonging  to  it,  need  not  be  consideredxT^LTthis  case  the 
building  adjoins  the  sidewalk,  and  the  words  "first  floor  in 
building  "  must  be  held  to  include  the  entire  front  wall  of  that 
part  of  the  building,  unless  there  is  something  to  control  the 
natural  meaning  of  the  language,  ^ 

^  That  the  outside  of  the  front  wall  would  be  valuable  to  the 
lessee  as  part  of  the  premises,  and  that  the  lease  gives  him 
the  right  to  use  it  for  some  purposes,  such  as  putting  out 
Bigns  and  displaying  goods,  is  not  disputed;  ybut  it  is  con- 


June,  1887.]  Lowell  v.  Strahan.  425 

tended  that  the  right  is  a  privilege  or  easement  appurtenant 
to  the  leased  premises  in  a  part  of  the  building,  not  parcel  of 
them.  The  defendant  contends,  on  the  other  hand,  that  the 
outside  of  the  front  wall  is  parcel  of  the  leased  premises.  It 
often  occurs  in  leases  of  part  of  a  building  that  rights  in  other 
parts,  or  in  land  not  parcel  of  the  premises,  as  in  entries,  pas- 
sage-ways, and  yards,  pass  as  appurtenant  to  them.  The  ques- 
tion in  such  cases  generally  is,  not  what  is  parcel  of  the 
demised  premises,  but  what  is  incident  to  them.  In  gen- 
eral, a  deed  or  lease  of  a  house  or  store  will  include  the  land 
under  it. 

In  Stockwell  v.  Hunter,  11  Met.  448,  45  Am.  Dec.  220,  and  in 
Shawmut  Nat.  Bank  v.  Boston,  118  Mass.  125,  it  was  held  that  the 
land  under  a  building  would  not  pass  as  parcel  of  the  prem- 
ises in  a  lease  of  the  basement  of  a  building,  the  upper  stories 
of  which  were  let  to  other  tenants.  In  the  first  case,  Mr.  Jus- 
tice Dewey  said:  "The  proper  construction  of  such  a  lease  as 
the  present,  as  it  seems  to  us,  is,  that  the  lessee's  right  of  occu- 
pation of  the  land  is  an  interest,  for  the  time  being,  defeasible 
by  the  destruction  of  the  building  by  fire":  11  Met.  456.  In 
the  latter  case,  Mr.  Justice  Morton  said:  "The  real  question 
is,  whether  the  intention  of  the  parties,  to  be  collected  from 
the  whole  lease,  was  to  grant  to  the  lessees  any  estate  in  the 
land  itself.    As  we  have  seen,  the  lease  does  not  in  terms  grant 

any  estate  in  the  land In  cases  where  different  rooms 

in  the  same  building  are  leased  to  separate  tenants,  the  situa- 
tion of  the  property  and  the  nature  of  the  tenures  exclude 
the  idea  that  each  tenant  takes  an  estate  for  years  in  the  land. 
Such  estates  existing  at  the  same  time  in  difierent  tenants  are 

inconsistent  and  impossible The  bank  and  Lawrence 

cannot  both  take  an  estate  for  years  of  the  same  land  ":  118 
Mass.  129,  130. 

In  the  case  at  bar,  the  words  of  description  naturally  include 
the  premises  in  question,  the  outer  walls.  It  is  plain  that  the 
lease  grants  not  merely  an  interest  in  the  walls,  like  the  inci- 
dental right  of  support  or  shelter  which  it  grants  in  the  land 
and  other  parts  of  the  house,  but  the  right  to  use  and  enjoy, 
as  leased  premises,  for  the  purposes  of  business.  That  right 
is  exclusive.  The  landlord  has  no  right  to  use  or  to  let  it  for 
such  purposes.  From  the  mere  demise,  without  regard  to 
special  provisions  of  the  lease,  there  is  no  reason  that  the 
landlord  should  bo  regarded  as  having  rights  in  the  outside 
different  from  what  he  has  in  the  inside  of  the  wall.    As  owner 


426  Lowell  v.  Strahan.  [Mass. 

of  the  upper  tenement,  he  has  a  right  in  the  whole  wall  for 
support,  but  that  right  would  not  operate  to  except  the  walls 
by  implication  from  a  deed  in  fee  of  the  lower  tenement,  or 
from  a  grant  of  it  for  years.  The  occasions  that  the  reversioner 
would  have  to  enter  upon  the  wall  of  the  demised  tenement 
must  be  few  and  extraordinary,  and  it  could  not  be  inferred, 
from  the  fact  that  the  right  was  not  expressly  reserved  in  the 
lease,  that  the  wall  was  excepted  from  it.  We  can  see  nothing 
in  the  nature  of  the  estate  granted,  therefore,  that  should  pre- 
vent the  outer  wall  from  being  included  as  parcel  of  the  de- 
mised premises.  On  the  contrary,  the  fact  that  it  is  of  value  to 
the  tenant  for  the  use  for  which  the  premises  may  be  occupied, 
and  of  no  value  for  use  to  the  landlord,  would  indicate  that  it 
was  part  of  the  premises,  if  the  description  was  doubtful.  If 
it  did  not  pass  by  the  lease  in  this  case,  it  would  seem  that 
the  right  which  the  plaintiff  claims  could  be  maintained.  The 
only  right  of  the  tenant  would  be  to  make  such  use  of  it  as 
would  be  incident  to  his  grant  of  the  adjoining  premises,  and 
the  right  of  the  landlord  would  be  to  enter  upon  it,  and  make 
any  use  of  it  not  inconsistent  with  the  incidental  rights  of  the 
tenant  to  use  it.  He  might  not  have  a  right  to  take  down  a 
tenant's  sign,  but  he  would  have  the  possession  of  the  wall, 
and  the  right  to  enter  upon  it,  and  to  use  any  of  it  not  actually 
used  by  the  tenant  for  any  purpose  not  inconsistent  with  the 
use  by  the  tenant  of  the  leased  premises.  It  is  not  reasonable 
to  suppose  that  this  was  the  intention  of  either  party.  The 
actual  possession  and  use  of  the  wall  by  the  tenant  which  the 
parties  obviously  intended  are  substantially  that  of  leased 
premises,  and  it  would  be  very  diflBcult  to  define  or  fix  the 
respective  rights  of  the  parties  in  it,  except  on  the  assumption 
that  it  is  a  part  of  the  demised  premises. 

There  is  nothing  in  the  particular  provisions  of  the  lease 
that  bears  with  much  force  upon  the  question.  The  covenant 
of  the  lessee  to  repair  is  what  would  be  expected,  whether  the 
outside  of  the  wall  were  included  or  not,  unless  the  suggestion 
is  entitled  to  some  weight,  that  if  the  outer  surface  of  the  wall 
was  not  included,  the  lessor  would  probably  have  insisted  upon 
a  special  covenant  by  the  lessee  to  keep  it  in  repair.  Perhaps 
the  covenant  by  the  lessee  to  save  the  lessor  harmless  from  all 
damages  arising  from  neglect  in  not  removing  snow  and  ice 
from  the  roof  of  the  building,  or  "  from  the  sidewalks  border- 
ing on  the  premises  so  leased,"  may  afford  a  slight  inference 
that  the  wall,  including  the  outer  surface  of  it,  was  part  of  the 


June,  1887.]  Lowell  v.  Stbahan.  427 

premises.  The  covenants  by  the  lessee  not  to  underlet,  and 
not  to  make  any  unlawful,  improper,  or  offensive  use  of  the 
premises,  nor  any  alterations  or  additions,  and  that  the  lessor 
may  enter  upon  the  premises  to  examine  the  condition  thereof, 
while  proper  to  protect  the  interest  of  the  reversioner  in  the 
surface  of  the  wall,  do  not  appear  to  have  particular  reference 
to  that.  We  can  find  nothing  in  the  lease  which  militates 
against  the  idea  that  the  whole  outer  wall  is  included  in  the 
premises;  and  the  description  of  the  premises  as  applied  to 
the  subject-matter,  and  the  right  in  the  outer  surface  of  the 
wall,  which  it  is  reasonable  to  suppose  the  parties  intended 
that  the  lessee  should  have,  and  the  entire  reasonableness  that 
the  whole  of  the  front  wall  of  that  part  of  the  building  should 
be  included  in  the  lease  of  a  floor  or  story  of  it,  in  connection 
with  the  particular  provisions  of  the  lease,  lead  us  to  the  con- 
clusion that  the  outer  surface  of  the  wall  was  part  of  the  de- 
mised premises. 

We  find  no  authority  against  the  conclusion  we  have  reached. 
Pevey  v.  Skinner^  116  Mass.  129,  decided  that,  where  different 
rooms  in  a  building  were  let  to  different  tenants,  a  license  by 
the  owner  of  the  building  to  the  tenant  of  a  lower  room  to 
place  his  sign  on  the  outer  wall  of  the  building,  extending  fif- 
teen inches  higher  than  the  floor  of  the  room  above,  was  not 
revoked  by  a  lease  of  the  room  above,  which  contained  the 
provision  that  "the  lessee  may  have  the  right  to  place  signs 
upon  the  outer  wall  of  said  rooms."  The  general  right  in  the 
outer  wall  of  the  lessee  of  a  single  room  was  not  considered. 
The  court  said:  "  His  right  to  use  the  outer  surface  of  the  wall 
was  defined,  and  thereby  limited  by  the  terms  of  the  lease." 
The  decision  can  have  very  little  bearing  upon  the  lease  of  a 
"  floor,"  which  does  not  define  and  limit  the  right  to  use  the 
outer  wall. 

Riddle  v.  Littlefield,  53  N.  H.  503,  16  Am.  Rep.  388,  and 
Baldwin  v.  Morgan,  43  Hun,  355,  are  directly  in  favor  of  our 
conclusion. 

Loring  v.  Bacon,  4  Mass.  575,  and  Cheeseborough  v.  Greeny 
10  Conn.  318,  26  Am.  Dec.  396,  are  cases  where  the  respective 
rights  of  owners  of  lower  and  upper  tenements  in  the  same 
building  are  considered,  but  have  no  particular  bearing  upon 
the  case  at  bar. 

It  is  contended  that  the  agreement  of  the  defendant  to  allow 
the  sign  of  a  stranger,  in  consideration  of  an  annual  payment 
by  him,  to  remain  upon  the  outside  wall  demised,  was  a  breach 


428  Lowell  v.  Strahan.  [Mass. 

of  the  covenant  in  the  lease  not  to  underlet  any  part  of  the 
premises.  But  this  was  a  license,  and  not  a  lease.  It  was 
permission  to  do  a  particular  act,  namely,  to  affix  a  sign  to 
the  wall,  and  gave  no  authority  to  do  any  other  act  upon  the 
premises.  The  fact  that  the  permission  was  paid  for,  and 
that  the  act  permitted  was  a  continuing  one,  are  ordinary  ele- 
ments of  a  license.  Every  license  to  do  an  act  upon  land 
involves  the  exclusive  occupation  of  the  land  by  the  licensee, 
60  far  as  is  necessary  to  do  the  act,  and  no  further.  A  lease 
gives  the  right  of  possession  of  the  land,  and  the  exclusive 
occupation  of  it  for  all  purposes  not  prohibited  by  its  terms. 
It  is  clear  in  this  case  that  the  intention  was  that  the  licensee 
should  have  no  other  right  in  the  premises  than  to  affix  his 
sign  to  them,  and  that  every  other  right  should  remain  in  the 
defendant.  An  agreement  of  this  nature  cannot  be  construed 
as  a  lease;  it  must  create  either  a  license  or  an  easement. 

In  Pevey  v.  Skinner^  supra,  it  was  said  that  permitting  a 
sign  to  be  kept  upon  the  wall  for  a  long  time  would  imply  a 
license,  but  it  was  not  intimated  that  it  would  imply  a  lease 
of  the  outer  surface.  We  have  not  been  referred  to  any  case 
in  which  the  question  here  presented,  or  any  closely  resem- 
bling it,  has  arisen.  Numerous  cases  have  arisen  in  England 
where  the  question  was,  whether  persons  occupying  land  under 
particular  agreements  were  liable  to  be  rated  as  occupiers: 
See  Cory  v.  Bristow,  L.  R.  2  App.  Cas.  262;  Electric  Telegraph 
Co.  v.  Overseers  of  Salford,  11  Ex.  181;  Lancashire  Telephone 
Co.  V.  Overseers  of  Manchester,  L.  R.  14  Q.  B.  D.  267;  Watkins 
V.  Overseers  of  Milton-next-Gravesend,  L.  R.  3  Q.  B.  350;  For- 
rest V.  Overseers  of  Greenwich,  8  El.  &  B.  890. 

In  Selhy  v.  Greaves,  L.  R.  3  C.  P.  594,  the  letting  of  a  de- 
fined portion  of  a  room  in  a  factory  with  steam  power  for 
working  lace-machines  was  held  to  be  a  demise;  and  in  Han- 
cock V.  Austin,  14  C.  B.,  N.  S.,  634,  permission  to  place  lace- 
machines  in  a  room  in  a  factory,  and  to  work  them  with 
steam  power  furnished  by  the  owner  of  the  factory,  was  held 
to  be  a  license,  and  to  create  no  demise.  The  case  last  cited 
approaches  nearest  to  the  case  at  bar  of  any  that  we  have 
Been,  and  in  that  the  reasons  for  regarding  the  transaction  as 
a  lease  are  obviously  stronger  than  in  this  case.  -That  was 
permission  to  occupy  with  fixed  machines  a  portion  of  the 
floor  and  space  above  it;  this  is  permission  to  insert  fasten- 
ings in  the  outer  wall  from  which  to  suspend  a  sign  in  proximity 
to  but  outside  of  the  building. 

Judgments  affirmed. 


Sept.  1887.]  Dalay  v.  Savage.  429 

Lease  of  "Store"  in  Building  Gives  Lessee  Right  to  Use  ani> 
Occupation  of  Outer  Walls  belonging  to  that  portion  of  the  tenement, 
iicluding  the  store,  for  the  purpose  of  posting  bills  and  notices  thereon: 
Riddle  v.  Littlefidd,  16  Am.  Rep.  388.  So  the  lease  of  a  "building  "  convey* 
the  land  under  the  eaves,  if  that  land  be  owned  by  the  lessor:  Shennan.  v. 
WiOianu,  18  Id.  522. 


Dalay  v.  Savage. 

ri45  Massachusetts,  38.] 

Lakdlokd  is  Liable  for  Injuries  Suffered  by  Thibd  Psbsons  Law- 
fully Using  Way,  where  he  lets  premises  abutting  upon  the  way, 
which,  from  their  condition  or  construction,  are  dangerous  to  such  per- 
sons, unless  the  tenant  has  agreed  to  put  the  premises  in  proper  repair. 

Grantee,  under  Power  of  Sale  in  Mortqaoe,  is  Liable  for  Injuries 
Suffered  by  Person  Walking  on  Sidewalk  in  Front  of  Prebiises, 
by  reason  of  a  defect  in  the  cover  of  a  coal-hole,  existing,  and  open  and 
visible,  at  the  time  of  the  sale,  where  the  owner  of  the  equity  of  redemp- 
tion released  any  title  he  might  have  to  the  grantee,  and  remained  in 
possession  as  a  tenant  at  will,  and  was  in  occupation  at  the  time  of  the 
injury. 

Tort  for  personal  injuries  sustained  by  the  plaintiff  by  fall- 
ing into  a  coal-hole  in  the  sidewalk  in  front  of  a  house  on  a 
public  street  in  Boston.  The  court  ruled  that  the  action  could 
not  be  maintained,  and  ordered  a  verdict  for  the  defendant. 
The  plaintifT  alleged  exceptions.  The  facts  are  stated  in  the 
opinion. 

P.  O'Loughlin,  for  the  plaintiff. 

T.  S.  Dame,  for  the  defendant. 

By  Court,  Field,  J.  The  defendant  received  a  conveyance 
of  the  premises  on  November  3,  1883,  having  purchased  them 
(at  a  sale  under  a  power  contained  in  a  mortgage.  Breslin,  on 
/April  20, 1875,  had  become  the  owner  of  the  equity  of  redemp- 
tion, subject  to  this  mortgage,  and  he  occupied  the  premises 
from  this  date  until  after  the  accident,  which,  it  was  admitted 
at  the  argument,  occurred  on  December  17,  1883. 

On  November  9, 1883,  Breslin  quitclaimed  whatever  title  he 
had  in  the  premises  to  the  defendant,  for  which  the  defendant 
agreed  to  pay  him  twenty-five  dollars,  and  Breslin  remained 
in  occupation,  as  the  tenant  at  will  of  the  defendant,  under  an 
agreement  to  pay  rent  at  the  rate  of  $41.67  a  month.  There 
was  evidence  from  which  the  jury  might  have  found  that  the 
stone  surrounding  the  cover  of  the  coal-hole  was  permanently 
defective  at  the  time  the  defendant  became  owner;  that  it  con- 


430  Dalay  v.  Savage.  [Mass. 

tinued  in  this  defective  condition  until  after  the  accident,  and 
was  of  such  a  character  that  "  the  cover,  on  being  stepped  on, 
would  tip  up,"  whether  it  was  tied  or  not  on  the  inside;  and 
that  the  accident  happened,  not  through  the  negligent  manner 
in  which  Breslin  used  the  premises,  but  through  the  defective 
condition  of  the  stone  surrounding  the  cover  of  the  coal-hole. 

The  defendant,  as  landlord,  was  under  no  obligation  to  Bres- 
lin to  keep  the  coal-hole  in  repair,  and  Breslin  was  under  no 
obligation  to  the  defendant  to  repair  it.  It  does  not  appear  in 
the  exceptions  that  the  defendant  at  any  time  knew  that  the 
coal-hole  was  in  a  defective  and  dangerous  condition. 

It  seems  to  be  settled  that  if  a  landlord  lets  premises  abut- 
ting upon  a  way,  which  are  from  their  condition  or  construc- 
tion dangerous  to  persons  lawfully  using  the  way,  he  is  liable 
to  such  persons  for  injuries  suffered  thereupon,  although  the 
premises  are  occupied  by  a  tenant,  unless  the  tenant  has  agreed 
with  his  landlord  to  put  the  premises  in  proper  repair.  That 
the  tenant  may  also  be  liable  is  not  a  defense  for  the  landlord. 

The  case  which  perhaps  most  nearly  resembles  this  is 
Gandy  v.  Jubher,  5  Best  &  S,  78;  S.  C.  in  the  exchequer  cham- 
ber, 5  Id.  485,  The  reasons  why  the  court  of  exchequer 
chamber  recommended  that  the  plaintiffs,  who  had  recovered 
judgment  in  the  queen's  bench,  should  consent  that  the  pro- 
ceedings be  stayed,  do  not  appear  in  the  report;  but  in  9 
Id.  15,  there  is  what  purports  to  be  the  undelivered  judg- 
ment of  that  court  in  the  case.  One  question  was,  whether  a 
landlord  who  has  the  power  to  determine  a  tenancy  from  year 
to  year  by  giving  notice,  and  who  does  not  exercise  it,  is  to  be 
held  as  thereby  reletting  the  premises.  In  the  course  of  the 
argument  in  the  exchequer  chamber.  Chief  Justice  Erie  said 
of  the  landlord's  liability:  "If  he  lets  the  premises  with  a  nui- 
sance, all  parties  agree  that  he  is  responsible."  In  the  opinion 
published  in  9  Best  &  S.  15,  the  grounds  on  which  the  court  of 
exchequer  chamber  differed  from  that  of  the  queen's  bench 
distinctly  appear  as  follows:  "We  agree  that  to  bring  liability 
home  to  the  owner,  the  premises  being  let,  the  nuisance  must 
be  one  which  was  in  its  very  essence  and  nature  a  nuisance  at 
the  time  of  letting,  and  not  something  which  was  capable  of 
being  thereafter  rendered  a  nuisance  by  the  tenant,  and  that 
it  is  a  sound  principle  of  law  that  the  owner  of  property  re- 
ceiving rent  should  be  liable  for  a  nuisance  existing  on  his 
premises  at  the  date  of  the  demise;  but  that  wherein  we  differ 
is,  that  a  landlord  from  year  to  year  having  the  power  of  giv- 


Sept.  1887.]  Dalay  v.  Savage.  431 

ing  the  ordinary  notice  to  quit,  and  not  giving  it,  is  thereby  to 
be  held  as  reletting  the  premises,  and  that  such  forbearing  to 
give  notice  is  equivalent  to  a  reletting." 

The  reason  of  the  rule  that  if  a  landlord  lets  premises  in  a 
condition  which  is  dangerous  to  the  public,  or  with  a  nuisance 
upon  them,  he  is  liable  to  strangers  for  injuries  suffered  there- 
from, is,  that  by  the  letting  he  has  authorized  the  continuance 
of  the  nuisance. 

Pretty  v.  Bickmore,  L.  R.  8  C.  P.  401,  was  decided  on  the 
ground  that  the  tenant  had  covenanted  to  keep  the  premises 
in  repair,  and  therefore  the  landlord  could  not  be  said  to  have 
given  authority  that  the  premises  should  be  kept  in  a  danger- 
ous state:  Gwinnell  v.  Earner,  L.  R.  10  C.  P.  658,  follows  Pretty 
V.  Bickmore,  supra.  See  also  Leonard  v.  Storer,  115  Mass.  86; 
15  Am.  Rep.  76. 

In  Nelson  v.  Liverpool  Breioery  Co.,  L.  R.  2  C.  P.  D.  311,  it  is 
expressly  said  that  if  the  landlord  lets  premises  in  a  ruinous 
condition,  he  is  liable  to  strangers. 

In  Saltonstall  v.  Banker,  8  Gray,  195,  197,  the  decisions  in 
Rich  v.  Basterfield,  4  C.  B.  783,  and  in  King  v.  Pedley,  1 
Ad.  &  E.  822,  are  approved,  and  it  is  said  that  if  the  nuisance 
existed  at  the  time  of  the  demise,  the  landlord  is  liable:  See 
also  Todd  v.  Flight,  9  Com.  B.,  N.  S.,  377. 

In  Jackman  v.  Arlington  Mills,  137  Mass.  277,  the  landlord 
was  held  liable  for  the  acts  of  his  tenants  in  polluting  the 
water  of  a  brook  by  discharging  into  it  the  sink-water  from 
the  houses  let,  and  the  reason  given  was,  that  the  houses  let 
were  intended  to  be  used  by  the  tenants  in  the  manner  in 
which  they  were  used,  and  that  if  the  landlord  did  not  retain 
the  control  of  the  water  used  by  the  tenants,  he  had  by  the 
letting  authorized  the  use  which  the  tenants  made  of  the 
water:  See  also  Owings  v.  Jones,  9  Md.  108;  Peoria  v.  Simpson, 
110  111.  294,  300;  51  Am.  Rep.  683;  Irvine  v.  Wood,  51  N.  Y. 
224;  10  Am.  Rep.  603;  Durant  v.  Palmer,  29  N.  J.  L.  544. 

An  attempt  has  been  made  to  bring  the  present  case  within 
the  rule  that  if  the  nuisance  is  created  by  a  tenant,  or  by  a 
former  owner  who  has  let  the  premises  to  a  tenant,  a  grantee 
is  not  liable  for  any  injury  that  may  result  from  the  condition 
of  the  premises  while  the  occupation  of  the  tenant  continues. 
If  the  defendant  had  bought  the  premises  subject  to  a  lease  to 
Breslin,  who  had  continued  in  occupation  under  it,  a  different 
case  would  have  been  presented.  But  when  the  defendant  pur- 
chased the  premises,  and  a  deed  was  delivered  to  him  by  the 


432  Dalay  v.  Savage.  [Mobb. 

mortgagee,  pursuant  to  the  power  of  sale  contained  in  the 
mortgage,  he  became  the  owner,  and  Breslin  had  no  longer 
the  right  of  occupation.  The  defendant  could  then  have  im- 
mediately taken  possession.  After  this  the  defendant  volun- 
tarily let  the  premises  to  Breslin  as  a  tenant  at  will,  and  at 
the  time  of  the  accident,  Breslin  held  possession  by  agreement 
with  the  defendant.  It  is  strictly  a  case  where  the  defendant 
let  premises  with  a  nuisance  upon  them,  and  took  no  agree- 
ment from  the  tenant  to  abate  the  nuisance,  or  to  repair  the 
premises.  So  far  as  appears,  the  plaintiff  was  lawfully  travel- 
ing upon  the  highway,  and  if  the  coal-hole  was  in  a  perma- 
nently dangerous  condition,  and  this  condition  existed  when 
♦he  defendant  let  the  premises,  the  landlord  is  not  excused 
uxjtxx  liability  by  the  fact  that  the  premises  were  in  the  occupa- 
tion of  a  tenant  at  the  time  when  the  plaintiff  was  injured 

It  is  not  necessary  to  determine  whether  the  owner  or  occu- 
pant in  his  relations  to  the  public  is  bound  at  all  events  to 
keep  the  covering  of  a  coal-hole  in  a  public  street  safe,  or  is 
only  bound  to  use  reasonable  care.  There  was  evidence  that 
the  defect  in  the  covering  of  the  coal-hole  had  existed  for  a 
long  time,  and  was  open  and  visible,  and  such  that  the  person 
whose  duty  it  was  to  repair  it  ought  to  have  known  its  con- 
dition. 

In  the  opinion  of  a  majority  of  the  court,  the  exceptions 
must  be  sustained. 

Exceptions  sustained.        

LiABttmr  OF  Landlord  to  Third  Person  for  Defectivb  Condition  ob 
Construction  of  Premises:  See  City  qf  Lovxll  v.  Spaulding,  50  Am.  Dec 
775,  and  note;  Godley  v.  Hagerty,  59  Id.  731,  and  note;  Carson  v.  Chdley,  67 
Id.  404;  Kirhy  v.  Boylaton  Market  Association,  74  Id.  682,  and  note;  Inhabitant* 
qf  MUford  v.  Holbrook,  85  Id.  735,  and  note;  note  to  Polack  v.  Pioche,  95  Id. 
123;  Shipley  V.  F\fly  Asaociatea,  3  Am.  Rep.  346;  8  Id.  318;  Fishery.  Thirkell, 
4  Id.  422;  Irvine  v.  Wood,  10  Id.  603;  Leonard  v.  Storer,  15  Id.  76,  and  note; 
Clanceyy.  Byrne,  15  Id.  391,  and  note;  Jaffe  v.  Hart&iu,  15  Id.  438;  CampbeU 
V.  Portland  Sugar  Co.,  16  Id.  503;  Swords  v.  Edgar,  17  Id.  295;  Burdick  v. 
CJieadle,  20  Id.  767;  Helwig  v.  Jordan,  21  Id.  189;  Shindelbeck  v.  Moon,  30  Id. 
584,  585;  Mcllen  v.  Moriill,  30  Id.  695;  Nash  v.  Minneapolis  Mill  Co.,  31  Id. 
349;  Camp  v.  Wood,  32  Id.  282;  Byan  v.  Wilson,  41  Id.  384;  Edvoardsx.  New 
York  etc.  B.Ii.,50  Id.  659;  Ingioersenv.  RanJdn,  54  Id.  109;  Wolf  v.  Kilpatrick, 
54  Id.  672;  Kalis  v.  ShaUuck,  58  Id.  568;  AU)e7-t  v.  State,  59  Id.  159;  Pierce  v. 
Savings  Society,  ante,  p.  45;  and  as  to  the  tenant's  liability,  see  note  to  City 
of  Lowell  V.  Spaulding,  50  Am.  Dec.  782;  note  to  Oodley  v.  Hagerty,  59  Id. 
733;  City  of  Boston  v.  WortJungton,  71  Id.  678;  Fisher  v.  Thirkell,  4  Am.  Rep. 
422;  Irvine  V.  Wood,  10  Id.  603;  Leonard  v.  Storer,  15  Id.  76;  Clanceyv.  Byrne, 
15  Id.  391,  and  note;  Shindelbeck  v.  Moon,  30  Id.  584;  Hussey  v.  Ryan,  54  Id. 
772;  Donaldson  v.  Wilson,  post,  p.  487. 


Sept.  1887.]    Pierce  v.  Equitable  Life  Assurance  Soc.     433 

LiABixnT  or  Land-owner  in  General  for  Defective  or  Dangerous 
Condition  of  Sidewalk:  See  note  to  Bromninj  v.  City  of  Sprinrifield,  63  Am. 
Dec.  355;  Congrever.  Morgan,  72  Id.  495,  and  note;  Kirby  v.  Boylston  Market 
Association,  74  Id.  682,  and  note;  Flynn  v.  Canton  Co.,  17  Am.  Rep.  603; 
Heeney  v.  Sprague,  23  Id.  502;  Harrison  v.  Collins,  27  Id.  699;  Hyan  v.  Cur- 
ran,  31  Id.  123;  Morton  v.  Smith,  33  Id.  811;  City  o/Keohihv.  Independent 
District  of  Keokuk,  36  Id.  226;  Taylor  v.  Lake  Shore  etc.  R.  R.,  40  Id.  457; 
Weraiick  v.  McCotter,  41  Id.  358;  Moore  v.  Oadsden,  41  Id.  352;  City  of  Peoria 
V.  Simpson,  51  Id.  683;  Welsh  v.  Wilson,  54  Id.  698;  Colder  v.  Smalley,  55  Id. 
270  (souttle-hole). 


PiBBOE  V.   Equitable   Life  Assurance  Society. 

[145  Massachusetts,  66.J 

Insurance  Company,  Incorporated  in  One  State,  Waives  Any  Objec- 
tion TO  Exercise  of  Jurisdiction  by  Courts  of  Another  State, 
by  appearing  generally  and  answering  to  the  merits,  in  a  suit  in  equity 
against  it,  brought  by  a  resident  of  the  former  state,  who  had  there 
taken  out  a  policy  on  the  tontine  savings  fund  assurance  plan,  to  obtain 
an  account  of  the  surplus  or  profits  derived  from  such  policies  8is  should 
cease  to  be  in  force  before  the  completion  of  their  respective  tontine 
periods,  which  were  to  be  apportioned  equitably  among  such  policies  as 
should  complete  such  periods. 

Insurance  Company  does  not  Hold  Surplus  or  Profits  as  Trust  Fund 
for  the  benefit  of  the  holders  of  policies  on  the  tontine  savings  fund  as- 
Burance  plan,  under  the  New  York  law,  where,  by  its  policies,  it  agrees  ■ 
that  the  surplus  or  profits  derived  from  such  policies  as  shall  cease  to 
be  in  force  before  the  completion  of  their  respective  tontine  dividend, 
periods  shall  be  appointed  equitably  among  such  policies  as  shall  com- 
plete such  periods. 

Bill  in  Equity  c.a.n  be  Maintained  against  Insx^lance  Company  by 
Holder  of  Tontine  Policy,  who  ia  to  be  regarded  as  a  creditor,  and 
not  a  member  of  the  corporation,  and  without  joining  the  other  policy- 
holders of  hi.s  class,  or  suing  on  their  behalf,  to  obtain  an  account  of  the 
surplus  or  profits  derived  from  such  policies  as  should  cease  to  be  in 
force  before  the  completion  of  their  respective  tontine  periods,  which 
were  to  be  apportioned  equitably  among  such  policies  as  should  com- 
plete such  periods,  although  the  defendant  is  incorporated  in  another 
state,  outside  of  which  it  is  a  great  inconvenience  for  it  to  account,  but 
not  an  insuperable  one,  it  having  a  place  of  business,  and  an  agent  to 
receive  service  of  process  in  the  state  where  the  suit  is  brought,  aud  it 
having  waived  any  objection  to  the  exercise  of  the  jurisdiction  of  the 
court  by  appearing  generally  and  answering  to  the  merits. 

Bill  in  equity  by  the  holder  of  a  policy  of  life  insurance 
on  the  tontine  savings  fund  plan,  issued  by  the  defendant,  al- 
leging that  by  the  terms  of  the  policy  the  defendant  had  con 
Stituted  itself  a  trustee  of  his  share  of  the  accumulations  of 
a  certain  fund,  and  praying  for  an  account.  The  facts  are 
stated  in  the  opinion. 

AM.  St.  Rep.,  Vol.  L— 28 


-434  Pierce  v.  Equitable  Life  Assurance  Soc.      [Mass. 

E.  P.  Usher,  for  the  plaintiff. 

/.  Lowell  and  R.  M.  Morse,  Jr.,  for  the  defendant 

By  Court,  Devens,  J.  The  policy  of  life  insurance,  in  re- 
gard to  which  the  plaintiff  seeks  that  the  defendant  shall 
Tender  an  account,  complaining  that  the  defendant  has  not 
apportioned  to  him  the  share  of  reserve  and  profits  to  which 
he  is  entitled,  was  made  rn  New  York;  and  the  plaintiff  is, 
and  was  at  the  time  of  bringing  this  bill,  a  resident  of  that 
tetate,  under  the  laws  of  which  the  defendant  is  incorporated. 
Had  the  defendant,  instead  of  appearing  generally,  objected 
t)riginally  that,  even  if  an  account  should  be  taken,  it  ought 
not  to  be  held  to  answer  here  to  the  plaintiff,  in  view  of  these 
facts,  and  the  great  inconvenience  involved  in  taking  such  an 
; account  at  a  distance  from  the  state  in  which  its  voluminous 
books  and  papers  are  properly  kept,  such  objection  would 
'have  been  worthy  of  serious  consideration.  Even  if  the  plain- 
tiff is  entitled  to  an  account,  he  might,  under  such  circum- 
stances, be  compelled  to  seek  it  where  it  can  most  appropriately, 
•as  well  as  most  conveniently,  be  rendered.  The  objection 
Tvhich  the  defendant  makes  to  the  jurisdiction  of  the  court 
appears  to  have  been  taken  for  the  first  time  when  the  case 
came  on  to  be  heard  on  its  merits  before  a  single  justice.  In 
the  opinion  of  a  majority  of  the  court,  any  objection  to  the 
€xercise  of  the  jurisdiction  of  this  court,  founded  on  the  facts 
above  set  forth,  must  be  deemed  to  have  been  waived  by  the 
;general  appearance,  pleading  to  the  merits,  and  the  delay  in 
taking  the  objection. 

The  principal  characteristics  of  the  policy  on  which  the 
controversy  arises  are  these:  It  was  for  the  sum  of  ten  thou- 
sand dollars,  payable,  on  the  decease  of  the  plaintiff,  to  him, 
his  executors,  administrators,  or  assigns,  and  was  for  the  term 
•<of  his  life.  It  was  known  as  a  tontine  policy,  on  the  savings 
insurance  plan,  and  was  to  continue  as  such  for  the  term  of 
ten  years,  if  the  plaintiff  should  live  bo  long.  If  the  holder  of 
the  policy  died  during  the  tontine  period,  which  expired  on 
March  18,  1883,  his  estate  would  not  receive  any  benefit  from 
the  dividends  which  ordinarily  are  made  on  life  assurance 
policies  annually  or  at  stated  periods;  which  dividends  con- 
sist of  the  surplus  of  premiums  after  deducting  the  cost  of  in- 
surance and  the  computed  reserve,  these  being  then  held  by 
■the  company  for  the  benefit  of  the  other  policy-holders,  and 
forfeited  by  him.     His  estate  would  receive  only  the  amount 


Sept.  1887.]    Pierce  v.  Equitable  Life  Assurance  Soc.    435 

of  his  policy.  If  the  holder  of  the  policy  also  should  fail  dur- 
ing this  tontine  term  to  keep  up  his  policy  by  payment  of  the 
premiums,  it  would  be  forfeited.  Policies  of  this  character 
are  kept  in  classes  of  ten,  fifteen,  or  twenty  years,  accord- 
ing to  their  tontin.e  periods;  and  while  the  funds  of  each 
class  are  not  kept  separate,  distinct  accounts  are  kept  with 
each  class,  so  as  to  show  the  amount  to  which  it  is  entitled, 
and  by  this  means  the  amount  due  upon  each  policy  at  the 
expiration  of  its  tontine  term.  At  the  expiration  of  ten  years, 
if  such  be  the  term,  or  at  the  completion  of  the  tontine  divi- 
dend period,  it  is  provided  that  "  all  surplus  or  profits  derived 
from  such  policies  on  the  tontine  savings  fund  assurance  plan 
as  shall  cease  to  be  in  force  before  the  completion  of  their  re- 
spective tontine  dividend  periods  shall  be  apportioned  equi- 
tably among  such  policies  as  shall  complete  their  tontine 
dividend  periods."  On  March  18,  1883,  the  policy  not  having 
terminated,  the  plaintiff  had  the  option,  —  '*  1.  To  withdraw, 
in  cash,  this  policy's  entire  share  of  the  assets,  whether  in  the 
reserve  fund  proper,  or  in  the  accumulated  surplus;  2.  To 
convert  the  same  into  a  paid-up  policy  for  an  equivalent 
amount;  ....  or  3.  To  continue  the  assurance  for  the  origi- 
nal amount,  and  apply  the  entire  tontine  dividend  to  the  pur- 
chase of  an  annuity  to  reduce  the  subsequent  premiums  falling 
due  upon  this  policy." 

The  "  reserve  fund  proper  "  and  "  accumulated  surplus  "  are 
made  up  of  the  dividends  which  have  been  withheld  on  the 
premiums  of  the  class  during  ten  years,  the  dividends  thus 
withheld  from  those  who  have  died  within  the  ten  years  being 
forfeited  for  the  benefit  of  the  class  to  which  their  policy 
belonged,  and  also  all  payments  made  by  and  dividends 
withheld  from  those  who  have  forfeited  their  policies  by  non- 
payment of  premiums. 

It  is  the  contention  of  the  defendant  that  the  plaintiff  is 
bound  by  the  apportionment  made  by  its  officers  in  the  dis- 
charge of  their  duties,  unless  it  shall  be  shown  at  least  that 
they  did  not  act  in  the  exercise  of  an  honest  discretion,  and  in 
good  faith.  We  find  no  words  in  the  policy  indicating  that 
the  decision  of  the  defendant  is  to  be  conclusive;  and  the 
words  by  which  the  defendant  agrees  "  equitably  "  to  appor- 
tion to  the  plaintiff's  policy  its  share  of  the  profits  bind  the 
defendant  to  make  the  apportionment,  and  imply  that,  in 
any  proper  proceeding,  it  may  be  inquired  whether  it  has  ful- 
filled this  part  of  its  contract. 


436  Pierce  v.  Equitable  Life  Assurance  Soc      [Mass. 

That  the  bill  brought  by  the  plaintiff  cannot  be  maintained 
on  the  ground  that  he  is  the  beneficiary  of  a  trust  fund  held 
by  the  defendant,  which  is  one  of  the  grounds  upon  which  an 
account  is  often  ordered,  and  upon  which  theory  the  bill  is 
based,  is,  we  think,  reasonably  clear.  By. the  New  York  law, 
which  must  govern  the  construction  of  a  contract  made  be- 
tween New  York  parties  to  be  performed  in  that  state,  it  has 
been  found  as  a  fact  by  the  judge  who  presided  that  the  policy 
issued  to  the  plaintiff  did  not  create  a  trust.  This  finding  is 
fully  sustained  by  the  evidence  from  the  decisions  of  the  tribu- 
nals of  that  state:  Taylor  v.  Charter  Oak  Ins.  Co.,  9  Daly,  489; 
Hencken  v.  United  States  Ins.  Co.,  11  Id.  282;  98  N.'  Y.  627; 
Verplanck  v.  Mercantile  Ins.  Co.,  1  Edw.  Ch.  84;  People  v. 
Security  L.  Ins.  etc.  Co.,  78  N.  Y.  114;  34  Am.  Rep.  522;  Bewley 
V.  Equitable  Assurance  Society,  61  How.  Pr.  344;  Cohen  v.  New 
York  Mut.  L.  Ins.  Co.,  50  N.  Y.  610;  10  Am.  Rep.  522;  St.  John  v. 
American  Ins.  Co.,  13  N.  Y.  31;  Uhlmannv.  New  York  Ins.  Co., 
13  Daly,  47.  While  the  prayers  in  the  plaintiff's  bill  have 
been  made  upon  the  theory  that  there  was  a  trust  fund  held 
by  the  defendant  for  the  benefit  of  the  plaintiff,  with  others, 
as  a  holder  of  a  ten  years'  tontine  policy,  no  objection  is 
pressed  by  reason  of  the  form  of  the  bill.  We  proceed  to 
consider,  therefore,  whether,  upon  any  other  ground  than  that 
strictly  of  trust,  the  bill  may  be  maintained  for  an  account. 

Our  statute  gives  jurisdiction  in  equity  upon  accounts 
"when  the  nature  of  the  account  is  such  that  it  cannot  be 
convenien'ly  and  properly  adjusted  and  settled  in  an  action 
at  law":  Pub.  Stats.,  c.  151,  sec.  2,  cl.  10.  Even  if  the 
amounts  kept  back  from  the  plaintiff,  and  those  of  his  class 
of  policy-holders,  by  the  retention  of  those  dividends  which 
would  otherwise  have  been  received,  or  of  those  sums  accruing 
from  the  forfeiture  of  policies  either  in  whole  or  in  part,  do 
not  constitute  a  trust  fund,  or  place  the  defendant  in  a  strictly 
fiduciary  capacity,  the  defendant  was  bound  to  keep  accurate 
accounts  of  them,  and  of  all  interest  and  profit  thereon,  if  any. 
All  the  facts  were  entirely  within  its  own  knowledge,  and  it  is 
only  thus  that  it  can  be  determined  what  equitably  ehould  be 
apportioned  to  the  plaintiff. 

It  is  said  that  the  plaintiff  has  a  sufficient  remedy  at  com- 
mon law;  that  he  can  bring  his  action  at  law;  and  that  upon 
proper  interrogatories  addressed  to  the  defendant,  all  the  in- 
formation necessary  for  the  proper  adjustment  of  the  account 
may  be  obtained.     But  even  if  an  action  at  law  could  be 


Sept.  1887.]    Pierce  v.  Equitable  Life  Assurance  Soc.     437 

maintained,  where  an  account  is  complicated,  so  that  a  full 
examination  and  settlement  of  previous  accounts,  transactions, 
or  methods  of  business  are  necessary,  and  where  the  whole 
matter  is  entirely  within  the  knowledge  of  the  defendant,  it 
cannot  so  conveniently  or  accurately  be  investigated  at  com- 
mon law  as  in  equity.  Even  if  a  trial  by  jury  be  claimed 
and  allowed,  the  court  might,  in  a  suit  in  equity,  so  mold  the 
issues  and  direct  the  course  of  the  trial  as  to  avoid  many  of 
the  difficulties  attending  a  trial  at  common  law:  Hallett  v. 
Cumaton,  110  Mass.  32.  It  was  thus  held  in  the  case  cited 
that  one  who  was  not  a  partner,  but  was  entitled  to  share  in 
the  net  profits  of  a  business,  might  maintain  a  bill  for  an  ac- 
count against  a  partnership  which  necessarily  involved  an 
examination  of  its  transactions,  and  of  its  whole  course  and 
methods  of  conducting  business.  In  Massachusetts  General 
Hospital  v.  State  Mut.  L.  Assurance  Co.,  4  Gray,  227,  it  was  said 
that  the  plaintifif  might  properly  maintain  a  bill  for  an  account 
of  the  net  profits  arising  from  the  insurance  of  lives  made  by 
it,  one  third  of  which  the  defendant  was  by  law  bound  to  jjay 
the  plaintifif. 

That  the  accounts  are  singularly  complicated,  and  that  the 
method  by  which  the  value  of  the  share  of  the  plaintifif  which 
he  has  obtained  by  full  payment  of  his  premiums  and  com- 
pletion of  his  tontine  period  is  ascertained  is  one  of  much 
complexity  and  difficulty  in  its  application,  appear  from  the 
evidence  reported.  A  court  of  equity  is  the  appropriate  tri- 
bunal for  dealing  with  such  an  account,  and  the  defendant 
is  fairly  bound  to  produce  an  account  from  the  data  in  its 
possession  which  shall  show  that  it  has  complied  with  its 
promise  equitably  to  apportion  to  the  plaintifif  his  share  in  the 
accumulations  made  through  the  operation  of  the  tontine  pro- 
visions in  his  policy. 

Nor  do  we  perceive  that  it  is  necessary  to  join  any  more  of 
this  class  of  policy-holders  in  the  bill,  or  that  the  bill  should 
be  brought  on  their  behalf.  It  appears  by  the  answer  of  the 
defendant,  and  also  by  the  evidence,  that  all  the  policy-holders 
of  the  class  to  which  the  plaintifif  belonged  have  been  settled 
with,  and  that  they  have  received  the  amount  apportioned  to 
them  by  the  defendant  corporation.  But  even  if  it  did  not  so 
appear,  the  plaintifif  made  hie  individual  contract  with  the 
defendant;  if  others  have  similar  contracts  depending  on  simi- 
lar states  of  fact,  they  in  no  way  aflfect  his  contract;  he  has 
no  demand  upon  any  one  other  than  the  defendant;  and  noth- 


438  Pierce  v.  Equitable  Life  Assurance  Soc.      [Mass. 

ing  that  he  will  receive  from  the  defendant  will  in  any  way 
aflFect  the  claims  of  others. 

It  is  contended  that  the  apportionment  of  the  reserve  or 
accumulated  profits  to  be  made  at  the  conclusion  of  the  ton- 
tine dividend  period  is  but  the  declaration  of  a  dividend;  that 
the  court  will  not  interfere  with  the  declaration  of  a  dividend, 
even  by  a  domestic  corporation,  it  being  a  question  solely  for 
its  directors,  or  other  proper  oflBcers,  whether  any  dividend 
shall  be  paid  made,  and  if  so,  of  what  amount;  and  that, 
until  this  is  made,  no  stockholder  has  any  rights  in  any 
profits  that  have  been  made,  or  assets  that  might  be  divided. 
Conceding  this  to  be  the  general  law,  the  amount  to  be  appor- 
tioned, or  which  the  plaintifif  is  entitled  to  have  apportioned, 
is  not  a  dividend,  in  the  limited  sense  in  which  the  word  is 
used  in  its  application  to  dividends  to  stockholders.  Between 
stockholders  and  the  corporation  of  which  they  are  members, 
no  relation  of  debtor  or  creditor  ordinarily  exists;  nor  does 
any  arise  until  a  dividend  has  been  declared.  The  affairs  of 
the  corporation  are  managed  by  those  whom  the  stockholders 
elect  as  oflicers;  and  by  this  administration  of  affairs  they  are 
bound.  The  plaintiff  is  not  a  member  of  the  corporation,  but 
its  creditor,  who  has  contracted  with  it.  At  the  end  of  a  fixed 
period,  having  complied  with  the  contract  on  his  own  behalf, 
and  made  the  payments  required,  he  is  entitled  to  have  ap- 
portioned to  him  his  share  of  a  certain  fund  to  be  computed. 
The  defendant  has  no  right  to  withhold  it  as  a  corporation 
may  withhold  profits  from  a  stockholder.  This  share,  or  its 
equivalent  in  value,  is  the  plaintiff's  own  property,  and  not 
that  of  the  defendant  corporation. 

Nor  is  it  important  that  the  sum  to  be  computed  as  belong- 
ing to  the  class,  and  from  which  the  apportionment  to  the 
plaintiff's  policy  is  to  be  made,  is  constituted  partially  of 
dividends  which,  but  for  the  tontine  contract,  would  have 
been  previously  paid  upon  the  policy.  It  may  be  that  th< 
amount  of  the  dividends  annually,  or  at  other  stated  inter 
vals,  distributed  to  policy-holders,  could  be  absolutely  deter* 
mined  by  the  officers  of  the  corporation.  If  this  is  so,  the 
plaintiff  would  still  have  a  right  to  an  account,  and  to  ascer- 
tain whether  the  dividends  reserved  under  his  contract  were 
proportionally  the  same  as  those  declared  on  other  life  insur- 
ance policies,  having  relation  to  their  different  circumstances; 
or  at  least  to  ascertain  what  were  the  amounts  reserved  as 
dividends  to  be  passed  to  the  credit  of  the  fund  when  it  should 


Sept.  1887.]   Pierce  v.  Equitable  Life  Assurance  Soc.    43^ 

be  computed,  if  it  had  no  actual  existence.  In  our  view  of 
the  case,  if  the  defendant  were  a  domestic  corporation,  there^ 
would  be  a  right  on  the  part  of  the  plaintiff  to  have  an  ac- 
count taken,  and  to  ascertain  thereby  whether  a  fair  appor- 
tionment had  been  made.  If  the  defendant  had  kept  no 
account,  if  it  had  no  means  of  furnishing  one,  or  showing 
whether  it  had  dealt  justly  or  unjustly  with  the  plaintiff,  it 
should  be  answerable  for  the  injury  which  it  had  occasioned 
by  its  neglect  to  do  what  the  contract  implies  it  would  do. 

The  defendant  is,  however,  a  foreign  corporation;  and  it  i» 
urged  that  this  court  ought  not  to  take  jurisdiction  of  the  case, 
if  it  were  possible  so  to  do,  and  that  practically  it  is  impossi- 
ble for  it  to  effect  justice  between  the  parties. 

That  it  is  a  matter  of  grave  inconvenience  to  the  defendant 
to  be  held  to  account  here  may  be  conceded.  That  if  the  ob- 
jection had  been  promptly  taken  that  the  plaintiff  was  a  resi- 
dent of  New  York  as  well  as  the  defendant,  it  would  have 
received  serious  consideration,  we  have  heretofore  suggested: 
Smith  V.  Mutual  Life  Ins.  Co.,  14  Allen,  336.  But  we  find  no 
inconvenience  that  is  insuperable;  the  defendant  has  an  estab- 
lished place  of  business  in  this  commonwealth,  and  an  agent 
to  receive  service  of  lawful  process.  It  may  be  presumed  that 
it  anticipates  that  the  profits  of  the  business  will  compensate 
for  the  inconvenience  of  being  held  to  answer,  and  in  a  proper 
case,  to  account,  in  a  state  other  than  that  to  which  it  owes 
its  corporate  existence.  It  is  true  that  we  cannot  bring  the 
oflBcers,  or  the  books,  or  the  assets,  of  this  corporation  withia 
our  jurisdiction,  but  the  corporation  is  itself  lawfully  before^ 
us.  We  shall  not  assume  that  it  will  neglect  any  order  that 
we  may  pass,  nor  indicate  how  such  order  may  be  enforced; 
or,  if  it  cannot  be  enforced,  how  such  proceedings  may  be  had 
that  the  plaintiff  may  be  indemnified  for  the  violation  of  the 
contract  made  with  him. 

It  is  further  objected  that  the  case  requires  us  to  exercise  a 
jurisdiction  over  the  corporation  in  its  corporate  functions,  ia 
the  matter  of  its  internal  economy,  and  in  the  relations  exist- 
ing between  it  and  its  policy-holders.  The  statute  under 
which  this  corporation  is  subjected  to  the  service  of  process 
does  not,  it  is  true,  necessarily  bring  the  subject-matter  of  the 
suit,  or  the  remedy  sought,  within  the  jurisdiction  of  this 
court;  nor  do  the  rights  and  liabilities  of  parties  under  local 
laws  necessarily  follow  them  into  other  jurisdictions:  Smith  v. 
Mutual  Life  Ins.  Co.,  supra.    Did  the  inquiry  before  us  concera 


440  Pierce  v.  Equitable  Life  Assurance  Soc.      [Mass. 

the  relation  between  the  defendant  corporation  and  its  stock- 
holders, we  could  not  undertake  to  pass  upon  or  determine  it: 
New  Haven  Horse  .Nail  Co.  v.  Linden  Spring  Co.,  142  Mass. 
349.  Such  an  inquiry  is  to  be  determined  by  the  local  tribu- 
nal. Were  the  case  such  that  we  were  called  upon  to  pass  any 
order  directing  or  controlling  the  corporation  in  the  exercise 
of  its  corporate  duties,  we  have  no  such  jurisdiction  as  would 
enable  us  to  do  it.  The  subject-matter  would  not  be  within 
our  province. 

But  in  the  case  at  bar,  the  plaintiff  is  a  creditor  and  not  a 
member  of  the  corporation.  He  has  a  contract  with  it  which 
he  contends  the  corporation  has  not  fairly  performed.  There 
is  no  question  of  its  internal  economy  involved,  as  where  the 
relations  between  its  members  and  the  corporation  are  con- 
cerned. If  it  has  adopted  any  method  of  conducting  its  busi- 
ness inconsistent  with  the  due  performance  of  its  contracts, 
such  a  method  of  administration  will  not  deprive  the  plaintiff 
of  any  rights.  It  can  no  more  refuse  to  account  than  could 
an  individual  to  whom  the  plaintiff  intrusted  his  moneys  on 
any  similar  contract.  In  dealing  with  the  plaintiff,  the  cor- 
poration dealt  with  an  outside  person,  and  only  the  relation 
which  it  bears  to  such  person,  claiming  to  be  its  creditor,  is 
here  involved. 

The  questions  whether,  if  the  defendant  is  to  account,  on 
what  principles  it  shall  do  so,  or  whether,  if  the  case  is  sub- 
mitted to  a  master,  it  shall  be  so  submitted  by  an  order  which 
shall  direct  him  how  the  account  shall  be  taken,  have  not 
been  discussed,  and  are  not  considered.  It  may  be  that  fuller 
evidence  may  be  required  than  has  yet  been  taken  before  they 
can  be  disposed  of. 

Decree  for  an  account. 


Life  Insurance  Company  Sxtstains  What  Relation  to  Policy-hold- 
ERS:  See  Cohen  v.  New  York  Mutual  Life  Ins.  Co.,  10  Am.  Rep.  522,  633; 
People  V.  Security  Life  Ins.  etc.  Co.,  34  Id.  622. 

Equity  will  Entertain  Bill  for  Accounting,  although  there  may  be 
a  remedy  at  law,  if  the  legal  remedy  be  doubtful  or  inadequate:  Ludlow 
V.  Simond,  2  Am.  Dec.  291;  compare  Smiley  v.  Bell,  17  Id.  813;  Lesley  v. 
Rosson,  77  Id.  679. 

Stockholders'  Rights  and  Remedies  with  Respect  to  Dividends: 
See  note  to  Goodwin  v.  Hardy,  99  Am.  Dec.  761,  where  the  subject  is  dis- 
cussed. 

Service  of  Process  on  Foreign  Corporations:  See  note  toHampson  v. 
Weare,  66  Am.  Dec.  121,  where  the  question  is  considered. 


Sept.  1887.]     Bliss  v.  Inhabitants  of  South  ELadley.       441 

Bliss  v.  Inhabitants  of  South  Hadley. 

[145  Massachttsbtts,  91.] 

Parents  or  Brother  of  Child  cannot  be  Said  to  have  been  Neqli- 
OENT  AS  Matter  of  Law,  iu  an  action  against  a  town  to  recover  dam- 
ages  for  the  death  of  the  child  caused  by  a  defect  iu  a  street,  where  the 
child,  one  year  and  ten  months  old,  was  sent  by  his  mother  into  the 
street  for  air  and  exercise,  in  charge  of  his  brother  eight  years  old,  who 
was  accustomed  to  take  him  out,  and  while  the  children  were  standing 
in  the  street  watching  other  boys  at  play,  the  younger  child,  unnoticed 
by  the  elder,  started  across  the  street,  and  upon  being  seen,  called  at,  and 
run  after  by  the  elder,  ran,  fell,  and  rolled  into  a  gutter,  which  had  been 
filled  with  water  for  some  time  by  reason  of  aoi  obstructed  culvert,  the 
condition  of  which  was  known  to  the  parents  and  the  elder  brother,  re- 
ceiving injuries  which  caused  his  death. 

Children  Sent  into  Street  by  Parents  for  Aib  and  EIxercisb  mat  bm 
Properly  Found  to  be  Travelers  by  the  jury,  in  an  action  against  a 
town  to  recover  dama^^es  for  the  death  of  one  of  them  caused  by  a  defect 
in  the  street,  although  they  stopped  for  a  few  minutes  to  watch  other 
boys  at  play. 

Tort,  under  the  Massachusetts  Public  Statutes,  chapter  52, 
eection  17,  by  Willard  M.  Bliss,  as  administrator  of  his  infant 
child  Frank,  to  recover  damages  for  the  death  of  the  child, 
occasioned  by  an  alleged  defect  in  a  street  in  South  Hadley. 
It  appeared  from  the  evidence  that  on  the  morning  of  April  22, 
1885,  the  child,  who  was  one  year  and  ten  months  old,  was 
sent  by  his  mother  into  the  street  for  air  and  exercise,  in  charge 
of  his  brother  Leon,  eight  years  old,  who  had  been  accustomed 
to  take  him  out.  The  children  stood  in  the  street  for  a  time, 
watching  two  other  boys  at  play.  Leon  did  not  have  hold  of 
Frank's  hand.  Frank,  without  being  noticed  by  Leon,  started 
across  the  street  alone.  Leon  saw  him,  called  to  him,  and  ran 
after  him,  when  Frank  ran,  fell  down,  and  rolled  into  a  gutter 
between  the  worked  roadway  and  the  sidewalk,  which  had 
been  filled  with  water  for  some  time  by  reason  of  an  obstructed 
culvert,  and  received  injuries  which  caused  his  death  soon 
after.  Both  parents  knew  of  the  existence  of  the  water,  and 
that  the  place  was  a  dangerous  one  for  children.  Leon  also 
knew  of  its  existence.  The  defendant  requested  the  court  to 
rule  that  there  was  no  evidence  that  the  plaintiff's  intestate  was 
in  the  exercise  of  due  care;  that  there  was  no  evidence  that 
he  was  a  traveler  on  the  highway;  and  that  on  all  the  evidence 
on  these  points  the  plaintiff  could  not  recover;  but  the  rulings 
were  refused  and  the  case  submitted  to  the  jury.  The  jury 
returned  a  verdict  for  the  plaintiff,  and  the  defendant  alleged 
exceptions. 


442  Bliss  v.  Inhabitants  of  South  Hadley.       [Mass. 

D.  W.  Bondf  for  the  plaintifif. 

J.  C.  Hammond,  for  the  defendant. 

By  Court,  Morton,  C.  J.  It  cannot  be  said,  as  matter  of 
law,  that  it  was  negligence  on  the  part  of  the  parents  of  the 
intestate  to  send  him  into  the  street  for  air  and  exercise  in 
the  charge  of  his  brother  Leon,  who  was  eight  years  old.  It 
was  a  question  of  fact,  depending  upon  how  much  the  street 
was  used,  and  upon  the  intelligence,  capacity,  and  experience 
of  Leon,  and  was  properly  submitted  to  the  jury.  The  evi- 
dence does  not  disclose  any  decisive  act  of  negligence  on  the 
part  of  Leon,  and  it  was  for  the  jury  to  determine  whether  he 
was  exercising  reasonable  diligence  in  the  care  of  his  infant 
brother. 

It  was  competent  for  the  jury  to  find  that  the  boys  were 
travelers.  They  were  using  the  street  for  air  and  exercise. 
The  fact  that  they  stopped  for  a  few  minutes  to  watch  other 
boys  at  play  was  one  of  the  natural  and  ordinary  incidents  of 
travel,  and  did  not  divest  them  of  their  rights  as  travelers: 
Outline  v.  Lowell,  144  Mass.  491;  59  Am.  Rep.  102. 

Exceptions  overruled. 


LiABiLrnr  op  Municjipal  Coepoeation  for  Injttey  to  Child  Platxnq  ut 
Street,  from  its  Defective  CoNDmoN:  See  Stinaon  v.  City  of  Oardiner,  66 
Am.  Dec.  281;  City  o/Cldcago  v.  Starr,  88  Id.  422;  City  of  Chicago  v.  Hesing, 
25  Am.  Rep.  378;  Oavin  v.  City  of  Chicago,  37  Id.  99;  City  of  Chicago  v.  Ke^e, 
55  Id.  860,  and  note;  CUy  of  Indianafolia  v.  Emmelman,  58  Id.  65;  Kunz  v. 
City  of  Troy,  58  Id.  508;  Oulline  v.  Lowell,  59  Id.  102,  103. 

Parents'  Permitting  Chxld  to  be  in  Street,  Effect  of,  in  General,  if 
Child  is  Injured:  See  Hartfield  v.  Roper,  34  Am.  Dec.  273,  and  note;  Rob- 
inson V.  Cone,  54  Id.  67;  note  to  Freer  v.  Cameron,  55  Id.  677;  Sjnith  v.  O'CarV' 
nor,  86  Id,  582;  Pittsburgh  etc.  R'y  v.  Vining'a  Adjn'r,  92  Id.  269;  Pittsburgh  etc 
Ry  V.  Bumstead,  95  Id.  539;  Mulligan  v.  Curtis,  97  Id.  121;  Bellefontaine  etc 
R.  R.  V.  Snyder,  98  Id.  175;  Mangam  v.  Brooklyn  R.  R.,  98  Id.  66;  Kay  v. 
Pennsylvania  R.  R.,3  Am.  Rep.  628;  Lynch  v.  Smith,  6  Id.  188;  Ihl  v.  FoHy- 
tecond  etc  R.  R.,7  Id.  450;  Congreve  v.  Ogden,  10  Id.  361;  Smith  v.  Hesion- 
vUle  etc  R'y,  37  Id.  705. 


r 


Oct.  1887.]     Bassett  v.  Connecticut  River  R.  R.  Co.       443 
Bassett  V.  Connecticut  Kiver  Eailroad  Co. 

[145  Massachcsetts,  129.  J 
Railroad  Corporation  is  not  Liable  for  Goods  Destroted  by  Firb 
while  in  its  possession  under  a  contract  of  carriage,  under  the  Massachu- 
setts Public  Statutes,  chapter  112,  section  214,  which  provides  that  a  rail- 
road corporation  shall  be  responsible  in  damages  to  a  person  whose 
buildings  or  other  property  may  be  injured  by  fire  communicated  by  its 
locomotive-engines. 

Tort  for  the  loss  of  goods  by  fire  communicated  by  a  loco- 
motive-engine, under  the  Public  Statutes,  chapter  112,  section 
214,  which  provides:  "  Every  railroad  corporation  and  street 
railway  company  shall  be  responsible  in  damages  to  a  person 
or  corporation  whose  buildings  or  other  property  may  be  in- 
jured by  fire  communicated  by  its  locomotive-engines,  and 
shall  have  an  insurable  interest  in  the  property  upon  its  route, 
for  which  it  may  be  so  held  responsible,  and  may  procure  in- 
surance thereon  in  its  own  behalf."  On  March  30,  1887,  the 
freight-depot  of  the  defendant  at  Chicopee,  with  its  contents, 
including  the  plaintifi''s  household  goods,  was  destroyed  by 
fire  communicated  from  a  locomotive-engine.  The  goods  had 
been  placed  on  board  the  cars  at  Providence,  Rhode  Island, 
for  transportation  to  Chicopee.  They  arrived  at  Chicopee, 
March  26th,  and  were  taken  from  the  cars  on  the  afternoon  of 
that  day  by  the  servants  of  the  defendant,  and  placed  in  the 
freight-depot,  where  they  remained  until  the  building  and  its 
contents  were  destroyed  by  fire.  The  plaintiff  had  no  notice 
from  the  company  whatever  of  the  arrival  of  the  goods,  but 
was  told  by  a  teamster,  who  wished  the  job  of  removing  them, 
that  they  had  arrived.  The  court  gave  judgment  for  the  de- 
fendant upon  the  foregoing  facts. 

L.  White f  for  the  plaintiff. 

0.  SVelh  and  Q.  M.  Steams,  for  the  defendant. 

By  Court,  Knowlton,  J.  The  plaintiff  lost  his  goods  by  fire 
in  the  defendant's  freight-house,  and  he  seeks  to  recover  their 
Talue  under  the  Public  Statutes,  chapter  112,  section  214. 
The  statute  invoked  is  remedial,  and  has  been  liberally  con- 
strued in  favor  of  those  for  whose  benefit  it  was  enacted.  The 
decisions  indicate  that  it  applies  to  property  of  every  kind, 
and  in  any  place  where  fire  may  be  communicated  by  a  loco- 
motive-engine: Hart  V.  Western  R.  /?.,  13  Met.  99;  46  Am.  Dec. 
719;  Lyman  v.  Boston  and  Worcester  R.  R.,  4  Cush.  288;  Trash 


444  Bassett  v.  Connecticut  River  R.  R.  Co.       [Mass. 

V.  Hartford  and  New  Haven  R.  R.,  16  Gray,  71;  Ross  v.  Bosion 
and  Worcester  R.  R.,  6  Allen,  87;  Quigley  v.  Stochbridge  and 
Pittsfield  R.  R.f  8  Id.  438.  But  it  has  never  been  held  that  it 
includes  within  its  provisions  articles  placed  in  the  possession 
of  a  railroad  corporation  by  their  owner,  under  a  contract 
which  fully  covers  the  rights  and  liabilities  of  both  parties  re- 
garding them.  When  parties  see  fit  to  stipulate  what  their 
relations  shall  be  touching  any  matter,  their  stipulations  fix 
their  rights  and  liabilities,  and  exclude  what  is  not  fairly  in- 
cluded in  them.  The  statute  referred  to  gives  protection  to 
owners  of  property  who  have  made  no  arrangement  with  the 
railroad  corporation  about  it.  It  was  not  intended  to  prevent 
the  making  of  contracts  by  property  owners  with  railroad  cor- 
porations, determining  their  respective  rights  and  duties  in  re- 
lation to  particular  property,  or  to  apply  to  cases  where  such 
contracts  have  been  made.  Nor  is  there  any  difference  in  this 
regard  between  express  and  implied  contracts.  If  a  railroad 
corporation  and  an  owner  of  land  or  personal  property  make 
an  arrangement  about  it  from  which  the  law  implies  a  con- 
tract broad  enough  to  cover  the  subject  of  liability  for  loss  or 
injury,  this  contract,  implied  from  their  voluntary  act,  fixes 
their  rights,  and  excludes  the  provisions  of  a  statute  intended 
for  cases  not  covered  by  a  contract. 

The  plaintiflf  had  employed  the  defendant  as  a  common  car- 
rier to  transport  his  goods  to  Chicopee.  He  voluntarily  en- 
tered into  an  arrangement  which  involved  the  subject  of  the 
defendant's  liability  for  loss  of  the  property,  or  injury  to  it 
from  any  cause,  and  which  determined  his  rights  as  definitely, 
under  the  contract  implied  by  law,  as  if  the  parties  had  written 
out  and  signed  stipulations  in  detail.  The  defendant  was 
bound  to  carry  the  goods,  and  was  an  insurer  of  them  until 
the  transit  ended,  and  was  then  liable  as  a  warehouseman  for 
any  want  of  ordinary  care  during  such  reasonable  time  as  they 
should  remain  in  its  custody  awaiting  the  call  of  the  consignee. 
This  was  the  extent  of  its  liability.  In  the  language  of  Chief 
Justice  Shaw,  such  an  arrangement  "we  consider  to  be  one 
entire  contract  for  hire;  and  although  there  is  no  separate 
charge  for  storage,  yet  the  freight  to  be  paid,  fixed  by  the  com- 
pany, as  a  compensation  for  the  whole  service,  is  paid  as  well 
for  the  temporary  storage  as  for  the  carriage  ":  Norway  Plains 
Co.  V.  Boston  and  Maine  R.  R.,  1  Gray,  263,  272;  61  Am.  Dec. 
423.  The  goods  having  been  destroyed  while  in  the  posses- 
sion of  the  defendant  under  this  contract,  the  plaintiff  must 


Oct.  1887.]     Bassett  v.  Connecticut  River  R  R.  Co.       445 

seek  his  remedy  under  it,  and  the  statute  referted  to  does  not 
apply. 

Judgment  aflSrmed. 

The  case  of  Blaisdell  v.  Connecticut  Htver  Railroad  Co.,  145  Mass.  132,  was 
also  an  action  of  tort  under  the  Massachusetts  Public  Statutes,  chapter  112, 
section  214,  for  the  loss  of  goods  by  fire  communicated  by  a  locomotive-en- 
gine. The  principal  case  having  established  the  proposition  that  a  railroad 
corporation  was  not  liable,  under  the  statute,  for  goods  destroyed  by  fire 
while  in  its  possession  under  a  contract  of  carriage,  the  question  was,  whether 
the  plaintiffs'  property  in  this  case  was  in  the  defendant's  possession  at  the 
time  of  the  fire  under  such  a  contract.  The  opinion  of  the  court,  by  Knowl- 
ton,  J.,  is  as  follows:  "The  plaintiffs  were  large  shippers  of  merchandise 
over  the  defendant's  road,  and  the  defendant  built  for  their  use,  as  an  addi- 
tion to  its  depot,  a  storehouse  separated  from  the  general  freight-house  by  a 
brick  wall.  This  the  plaintiffs  had  occupied  for  two  years  in  connection 
with  their  business,  and  up  to  October  1,  1886,  they  had  paid  an  agreed 
price  per  month  for  it.  It  can  hardly  be  contended  that,  during  this  period, 
they  were  not  the  defendant's  tenants,  and  in  exclusive  possession  and  con> 
trol  of  all  that  the  storehouse  contained.  On  September  21, 1886,  they  noti- 
fied the  defendant  that,  by  reason  of  the  completion  of  a  new  building 
elsewhere,  they  should  not  need  the  storehouse  after  October  1st.  On  No- 
vember 1st  following,  the  station  agent  at  Chicopee  presented  them  a  bill  for 
the  rent  of  the  premises  for  the  month  of  October,  which  had  been  sent  him 
for  collection  by  the  defendant's  auditor,  in  accordance  with  a  usual  practice, 
and  without  special  directions  from  the  president  or  superintendent  regard- 
ing it.  The  plaintiffs  declined  to  pay  it,  referring  to  their  previous  notifica- 
tion, and  no  bill  was  afterwards  sent.  The  station-agent  informed  the 
superintendent  by  letter  of  their  refusal,  and  of  their  saying  that  'they 
.  would  pay  no  more  rent  for  the  storehouse,  thinking  they  should  have  it  free 
now,  and  would  keep  the  cars  cleaned  out. '  He  also  inquired  if  there  wae 
any  error  in  sending  the  bill,  and  asked  the  superintendent  to  advise  the 
plaintiffs  of  the  company's  position.  No  reply  was  sent  to  the  agent,  nor 
communication  to  the  plaintiffs,  and  they  continued  until  the  time  of  the  fire, 
in  March,  1887,  'to  use  and  occupy  the  storehouse  in  the  same  manner  and 
for  the  same  purposes  as  before,  which  use  was  known  by  the  station-agent, 
but  the  agent  did  not  know  whether  or  not  any  arrangement  had  been  made 
with  the  president  or  superintendent  for  such  use,  but  such  use  was  without 
any  objection  on  th£  defendant's  part,  and  no  other  persons  used  the  store- 
house. '  The  property  destroyed  '  had  been  received  by  the  plaintiffs  in  th* 
course  of  their  said  business  by  or  for  transportation. ' 

"  Upon  these  facts,  the  plaintiffs  were  in  possession  and  control  of  the  prop- 
erty in  the  storehouse  as  well  after  as  before  October  1,  1886.  The  goods 
which  had  come  over  the  defendant's  road  had  been  '  received '  by  the  plain- 
tiffs, and  kept  in  the  storehouse,  some  of  them  a  day  or  two  at  the  time  of 
the  fire,  and  some  of  them  for  months.  There  is  nothing  to  indicate  that  the 
contract  under  which  the  defendant  carried  them  had  not  been  fully  per- 
formed, and  so  far  as  appears,  the  defendant  did  not  seek  to  retain  a  lien 
apon  them,  but  allowed  the  plaintiffs  to  take  them  into  their  absolute  con- 
trol ;  and  the  facts  do  not  find  that  the  goods  iu  the  storehouse  '  received  by 
the  plaintiffs '  for  transportation  bad  ever  been  delivered  to  the  defendant  so 
that  the  parties  had  come  into  relations  of  contract  regardiog  them.     The 


446  Fairbanks  v.  Snow.  [Mass. 

defeadant  did  nofrtise  the  storehouse,  nor  have  the  custody  of  anything  in 
it.  It  is  quite  immaterial  whether  the  relation  of  landlord  and  tenant  con- 
tinued to  exist  between  the  parties,  or  whether  the  plaintiffs,  after  receiving 
freight  which  had  been  transported  over  the  defendant's  railroad,  left  it  in 
one  of  the  defendant's  buildings  by  sufferance.  The  test  question  is  as  to 
the  goods  which  had  been  transported  over  the  railroad,  whether  they  had 
been  given  up  to  the  owner  so  that  the  contract  of  carriage,  and  incidentally 
for  storage  for  a  reasonable  time  or  until  delivery,  no  longer  applied  to  them; 
and  as  to  those  which  were  intended  for  transportation,  whether  they  had 
been  delivered  to  the  corporation  so  that  the  contemplated  contract  had 
taken  effect. "  The  property  having  been  destroyed  by  fire  communicated  by 
a  locomotive-engine  of  the  defendant,  and  not  having  been  at  the  time  in  the 
possession  of  the  defendant  under  a  contract  fixing  the  rights  and  liabilities 
of  the  parties  regarding  it,  the  plaintiffs  were  held  entitled  to  recover. 

Raileoad  Company's  Liabiutt  fob  Fibe  Communicated  by  Locomo- 
TIVE-ENGINE3  IN  Geneeal:  See  Perley  v.  Eastern  B.  R.,  96  Am.  Dec.  645, 
and  note  649,  650,  collecting  prior  cases;  Martin  v.  Western  Union  R.  R.,  99 
Id.  189,  and  note;  Louisville  etc.  R'y  v.  Richardson,  32  Am.  Rep.  94,  and  note 
digesting  prior  cases;  Marquette  etc.  R.  R.  v.  Spear,  38  Id.  242;  Richmond  etc 
R.  R.  v.  Medley,  40  Id.  734;  Pittsburgh  etc  R'y  v.  Jonea,  44  Id.  334,  and  note; 
Simmonda  v.  New  York  etc  R.  R.,  52  Id.  587. 


Fairbanks  v.  Snow. 

ri45  Mabsachitbktts,  153.] 
DCBESS  BY  HXTSBAND  13  No  DEFENSE  IN  ACTION  BY  PAYEE  AGAINST  Wot  OU 

a  promissory  note  executed  bv  her,  if  the  payee  took  the  note  in  igno- 
rance thereof. 

Action  on  a  promissory  note.    The  opinion  states  the  facts. 

W.  S.  B.  Hopkins  and  S.  Haynes,  for  the  plaintiflF. 

A.  Norcross,  H.  C.  Harttoell,  and  C.  F.  Bakery  for  the  de- 
fendant. 

By  Court,  Holmes,  J.  This  is  an  action  upon  a  promissory 
note  made  by  the  defendant  and  her  husband  to  the  order  of 
the  plaintiff.  The  defendant  alleges  that  her  signature  was 
obtained  by  duress  and  threats  on  the  part  of  her  husband. 
The  judge  below  found  for  the  plaintiff,  on  the  ground,  it 
would  rather  seem,  that,  whether  there  was  duress  or  not,  the 
defendant  had  ratified  the  note,  which  there  seems  to  have 
been  evidence  tending  to  prove:  See  Morse  v.  Wheeler,  4  Allen, 
570;  Rau  v.  Von  Zedlitz,  132  Mass.  164.  But  as  this  may  not 
be  quite  clear,  we  proceed  to  consider  the  only  exception  taken 
by  the  defendant.  The  judge  refused  to  rule  that,  if  the  de- 
fendant  signed   the   note   under   duress,   it  was   immaterial 


Oct.  1887.]  Fairbanks  v.  Snow.  447 

whether  the  plaintiff  knew,  when  he  received  the  note,  that 
it  was  so  signed.     The  exception  is  to  this  refusal. 

No  doubt  if  the  defendant's  hand  had  been  forcibly  taken 
and  compelled  to  hold  the  pen  and  write  her  name,  and  the 
note  had  been  carried  off  and  delivered,  the  signature  and  de- 
livery would  not  have  been  her  acts;  and  if  the  signature  and 
delivery  had  not  been  her  acts,  for  whatever  reason,  no  con- 
tract would  have  been  made,  whether  the  plaintiff  knew  the 
facts  or  not.  There  sometimes  still  is  shown  an  inclination  to 
put  all  cases  of  duress  upon  this  ground:  Barry  v.  Equitable 
Life  Assurance  Society,  59  N.  Y.  587,  591.  But  duress,  like 
fraud,  rarely,  if  ever,  becomes  material  as  such,  except  on  the 
footing  that  a  contract  or  conveyance  has  been  made  which 
the  party  wishes  to  avoid.  It  is  well  settled  that  where,  as 
usual,  the  so-called  duress  consists  only  of  threats,  the  con- 
tract is  only  voidable:  Foss  v.  Hildreth,  10  Allen,  76,  80;  Vinton 
V.  King,  4  Id.  562,  565;  Lewis  v.  Bannister,  16  Gray,  500;  Fisher 
v.  Shattuck,  17  Pick.  252;  Worcester  v.  Eaton,  13  Mass.  371, 
375;  7  Am.  Dec.  155;  ]Vhclpdale's  Case,  5  Coke,  119  a;  1  Bla. 
Com.  130. 

This  rule  necessarily  excludes  from  the  common  law  the 
often  recurring  notion  just  referred  to,  and  much  debated  by 
the  civilians,  that  an  act  done  under  compulsion  is  not  an  act 
in  a  legal  sense.  Tamen  coactus  volui ;  D.  4.  2.  21,  sec.  5;  see 
1  Windscheid,  Pandekten,  sec.  80. 

Again,  the  ground  upon  which  a  contract  is  voidable  for 
duress  is  the  same  as  in  the  case  of  fraud ;  and  is,  that 
whether  it  springs  from  a  fear  or  from  a  belief,  the  party  has 
been  subjected  to  an  improper  motive  for  action:  See  Rodliff 
v.  Dallinger,  141  Mass.  1,  6;  55  Am.  Rep.  439;  Stiff  v.  Keith, 
143  Mass.  224.  But  if  duress  and  fraud  are  so  far  alike,  there 
seems  to  be  no  suflBcient  reason  why  the  limits  of  their  opera- 
tion should  be  different.  A  party  to  a  contract  has  no  concern 
with  the  motives  of  the  other  party  for  making  it,  if  he  neither 
knows  them  nor  is  responsible  for  their  existence.  It  is  plain 
that  the  unknown  fraud  of  a  stranger  would  not  prevent  the 
plaintiff  from  holding  the  defendant:  Master  v.  Miller,  4  Term 
Rep.  320,  338;  Masters  v.  Ibberson,  8  Com.  B.  100;  Sturge  v. 
Starr,  2  Myl.  &  K.  195;  Pulsford  v.  Richards,  17  Beav.  87,  95; 
White  V.  Graves,  107  Mass.  325;  9  Am.  Rep.  38. 

The  authorities  with  regard  to  duress,  however,  are  not  quite 
80  clear.  It  is  said  in  Thoroughgood's  Cane,  2  Coke,  9,  that  "if 
a  stranger  menace  A  to  make  a  deed  to  B,  A  shall  avoid  the 


448  Fairbanks  v.  Snow.  [Masa. 

deed  which  he  made  by  such  threats,  as  well  as  if  B  himself 
had  threatened  him,  as  it  is  adjudged  45  Edw.  III.,  6."  Shep- 
pard  Touchstone,  61,  is  to  like  effect.  See  also  Fowler  v.  But- 
terly,  78  N.  Y.  68;  34  Am.  Rep.  507.  But  in  Year  Book,  43 
Edw.  III.,  6,  pi.  15,  which  we  suppose  to  be  the  case  referred 
to,  it  was  alleged  that  the  defendant  was  imprisoned  by  the 
procurement  of  the  plaintiff.  And  we  know  of  no  distinct 
adjudication  of  binding  authority  that  mere  threats  by  a 
stranger,  made  without  knowledge  or  privity  of  the  party,  are 
good  ground  for  avoiding  a  contract  induced  by  them. 

In  Keilway,  154  a,  pi.  3,  "the  defendant  in  debt  pleaded 
that  he  made  the  obligation  to  the  plaintiff  by  duress  of  im- 
prisonment [on  the  part]  of  a  stranger,  and  the  opinion  of 
Rede  and  others  was  that  this  is  not  a  plea  without  making 
the  obligee  party  to  this  duress." 

In  Taylor  v.  Jaques,  106  Mass.  291,  294,  it  was  said  that  the 
defendant  had  to  prove  that  he  signed  the  note  "  under  a  rea- 
sonable and  well-grounded  belief,  derived  from  the  conduct 
and  declarations  of  the  plaintiffs,  that  if  he  did  not  sign  it  he 
would  be  arrested,"  etc.:  See  Green  v.  Scranage,  19  Iowa.  461, 
466;  87  Am.  Dec.  447;  Talley  v.  Robinson,  22  Gratt.  888;  Baze- 
more  v.  Freeman,  58  Ga.  276,  and  the  cases  as  to  purchasers 
for  value;  Clark  v.  Pease,  41  N.  H.  414;  Duncan  v.  Scott,  1 
Camp.  100.  See  also  Gilbert  v.  Stone,  Aleyn,  35;  Style,  72; 
Scott  V.  Shepherd,  2  W.  Black.  892,  896. 

Loomis  V.  Rtu;k,  56  N.  Y.  462,  was  decided  on  the  ground 
that  if  the  non-negotiable  note  in  suit  was  in  the  first  instance 
a  contract  between  the  plaintiff  and  the  defendant,  it  was  ob- 
tained through  the  agency  of  the  defendant's  husband  in  such 
a  way  as  to  make  the  plaintiff  answerable  for  his  conduct. 
Moreover,  the  older  writers  likened  duress  to  infancy,  and 
took  a  distinction  between  feoffments,  etc.,  by  the  party's  own 
hand,  and  acts  done  by  letter  of  attorney,  regarding  the  latter 
as  wholly  void:  2  Inst.  483;  Finch  Law,  102.  It  has  been 
held  in  New  York  and  some  other  states,  as  well  as  in  Eng- 
land, that  a  power  of  attorney  given  by  an  infant  is  void: 
Fonda  v.  Van  Home,  15  Wend.  631;  Knox  v.  Flack,  22  Pa.  St. 
337;  Saunderson  v.  Marr,  1  H.  Black.  75.  And  if  this  supposed 
analogy  were  followed,  the  contracts  in  all  the  New  York 
cases  which  we  have  cited  would  be  void  by  the  law  of  that 
state  for  want  of  a  personal  delivery  by  the  defendant  to  the 
plaintiff.  There  may  be  still  other  explanations  of  the  decis- 
ions. 


Oct.  1887.]  Miller  v.  Shay.  449^ 

In  the  present  case  it  does  not  appeal  who  delivered  the 
note,  and  does  not  clearly  appear  that  the  defendant  did  not 
deliver  it  herself.  The  distinction  as  to  powers  of  attorney 
has  been  limited,  if  not  wholly  done  away  with,  in  Massachu- 
setts, in  regard  to  infants:  Whitney  v.  Dutch,  14  Mass.  457, 
463;  7  Am.  Dec.  229;  Welch  v.  Welch,  103  Mass.  562;  Moley 
V.  Brine,  120  Mass.  324.  But  we  express  no  opinion  as  to  the 
effect  of  duress  upon  such  powers,  oral  or  written. 

On  the  case  as  it  is  presented  to  us,  we  are  of  opinion  that 
the  ruling  requested  was  wrong  upon  principle  and  authority. 

Exceptions  overruled. 

Duress  by  Husbaitd  wn.L  not  Avois  Instbxtmsnt  Exboutbo  bt  Wife, 
if  the  other  party  thereto  was  ignorant  thereof:  See  L^ebvre  v.  DutruU,  37 
Am.  Rep.  833;  and  see  Wright  v.  Remington,  32  Id-  180;  contra:  Central 
Bank  qf  Frederick  V.  Copeland,  81  Am.  Dec.  597. 


Miller  v.  Shay. 

[145  Massacbubetts,  162.] 

Account-book,  Kept  by  One  Unable  to  "WKriE,  in  Which  only  En- 
TBiES  ARE  Straight  Marks  to  indicate  the  number  of  loads  of  sand 
delivered,  is  admissible  in  evidence,  when  supported  by  oath;  and  at  all 
events,  such  person  has  the  right  to  use  the  book  as  a  memorandum  to 
refresh  and  aid  his  memory. 

Account-book  is  Book  of  Original  Entries,  w>en  the  marks  therein  are 
transferred  the  same  day  from  marks  on  a  cart  made  by  a  servsmt  who 
delivered  the  loads. 

Servant  is  Competent  and  Necessary  Witness  to  Support  Charges 
AND  Prove  Delivery,  when  goods  are  delivered  by  a  servant,  and  his 
entries  or  marks  are  transferred  to  the  nwster's  account-book,  which  is 
offered  in  evidence. 

Contract  for  a  number  of  loads  of  sand  sold.  The  plain- 
tiff testified  that  he  could  not  write,  and  could  read  but  little; 
that  he  delivered  some  of  the  sand  himself,  and  employed  his 
8on  William,  Joseph  Pratt,  and  Edward  McCann,  to  draw  and 
deliver  other  loads;  that  when  he  himself  delivered  any,  he 
put  a  straight  mark  in  a  small  account-book  for  each  load; 
and  that  when  Pratt  or  McCann  worked,  each  of  them  marked 
on  the  side  of  his  cart  with  chalk  or  pencil  the  number  of 
loads  he  drew  that  day,  and  reported  the  same  daily  to  the 
plaintiff,  who  made  corresponding  marks  in  his  book,  and 
the  marks  on  the  cart  were  then  rubbed  out.  Pratt  testified 
that  he  drew  some  of  the  sand  in  question,  and  kept  an  ac- 

A.M.  ST.  liBP.,  Vol.  I.  —29 


^450  Miller  v.  Shay.  [Mass. 

•  count  of  it  by  a  chalk-mark  on  his  cart  for  each   load   he 

•  drew;  and  against  the  defendant's  objection  and  exception, 
testified  that  each  day  he  drew  sand  he  counted  the  marks 
for  that  day,  and  reported  the  number  to  the  plaintifif.  Mc- 
Cann  gave  similar  testimony  to  that  of  Pratt.  William  Miller, 
the  plaintiff's  son,  testified  that  he  drew  some  of  the  sand,  and 
kept  an  account  himself,  which  was  produced  and  identified. 
The  plaintifif  offered  in  evidence,  against  the  defendant's  objec- 
tion, the  book  kept  by  him.  It  showed  no  debit  or  credit  side, 
and  did  not  mention  the  name  of  the  defendant;  but  on  dif- 
ferent pages  there  were  a  series  of  straight  marks,  aggregating 
214.  The  court  held  that  the  book  was  competent  evidence, 
in  connection  with  the  evidence  adduced  by  the  plaintiff,  if 
believed,  and  admitted  it  in  evidence.  The  plaintiff  had  a 
verdict,  and  the  defendant  alleged  exceptions. 

G.  T.  Dewey,  for  the  plaintiff. 

W.  A.  Oile,  for  the  defendant. 

By  Court,  Morton,  C.  J.  The  small  account-book  kept  by 
the  plaintiff,  showing  the  number  of  loads  of  sand  delivered, 
was  properly  admitted  in  evidence.  It  was  a  rough  and  im- 
perfect book  of  accounts,  but  it  was  honestly  kept,  and  was  the 
record  of  the  daily  business  of  the  plaintiff,  made  for  the  pur- 
pose of  establishing  a  charge  against  another:  Pratt  v.  White, 
132  Mass.  477.  Such  a  book,  supported  by  the  oath  of  the 
plaintiff,  is  competent,  though  the  account  was  kept  only  by 
marks,  the  plaintiff  being  unable  to  write.  These  entries  are 
intelligible,  and  no  more  liable  to  fabrication  than  other  en- 
tries. It  is  a  book  of  original  entries,  though  the  marks  were 
tranferred  from  marks  made  on  the  cart  by  the  servants  of  the 
plaintiff  who  delivered  the  sand:  Smith  v.  Sanford,  12  Pick. 
139;  22  Am.  Dec.  415;  Kent  v.  Garvin,  1  Gray,  148;  Harwood 
V.  Mulry,  8  Id.  250. 

Where  goods  are  delivered  by  a  servant,  and  his  entries  or 
marks  are  transferred  to  the  master's  account-book,  it  has  been 
held  that  the  servant  must  be  a  witness  to  support  the  charges 
and  to  prove  the  delivery:  Kent  v.  Garvin,  supra.  In  the  case 
before  us,  therefore,  the  testimony  of  Joseph  Pratt  was  compe- 
tent and  necessary. 

If  there  was  doubt  whether  the  plaintiff's  book  ought  to  have 
;gone  to  the  jury,  there  is  another  ground  upon  which  the  de- 
fendant's exceptions  should  be  overruled.  In  a  transaction 
dike  that  involved  in  this  case,  it  is  not  to  be  expected  that 


Oct.  1887.]  Spring  v.  Haqeb.  451 

any  memory  unaided  could  retain  accurately  the  number  of 
loads  of  sand  delivered.  The  plaintiff  had  clearly  the  right  to 
use  his  account-book  as  a  memorandum  to  refresh  and  aid  his 
memory.  The  fact  that  the  book  went  to  the  jury  could  not 
prejudice  the  defendant.  The  only  possible  use  the  jury  could 
make  of  it  would  be  to  count  the  marks,  and  see  if  the  plaintiff 
had  stated  their  number  correctly.  The  exceptions  show  that 
the  plaintiff's  count  was  correct,  and  it  is  of  no  consequence 
to  the  defendant  whether  the  jury  took  this  number  from  the 
plaintiff's  testimony  or  from  a  count  of  the  marks.  A  new 
trial  would  not  be  granted  because  of  the  admission  of  incom- 
petent testimony  which  is  entirely  immaterial. 
Exceptions  overruled. 

Account-books,  What  are,  so  as  to  be  Admissible  in  Evidencb:  See 
Onion  Bank  v.  Knapp,  15  Am.  Dec.  181,  and  note;  Boyd  v.  Ladson,  17  Id. 
707;  Rliodes  v.  Oaul,  27  Id.  277;  Merrill  v.  Ithaca  etc.  R.  R.,  30  Id.  130;  Cum- 
mings  v.  NicIioU,  38  Id.  501;  White  v.  St.  Phillip's  Church,  39  Id.  125;  Mathes 
V.  Robinson,  41  Id.  505;  Odellv.  Culbert,  42  Id.  317;  Doster  v.  Broum,  71  Id. 
153;  Reviere  v.  Potoell,  34  Am.  Rep.  94;  Corr  v.  Sellers,  45  Id.  370;  Ryan  v. 
Ditnphy,  47  Id.  355;  Mayor  etc.  of  New  York  v.  Second  Ave.  R.  R.,  55  Id.  839; 
Van  Every  v.  Fitzgerald,  59  Id.  835. 

Account- BOOKS  Containing  Transckibed  Entries,  when  Books  of 
Original  Entries:  See  Pillsburyv.  Locke,  60  Am.  Dec.  711,  and  note  col- 
lecting prior  cases;  State  v.  Shinbom,  88  Id.  224;  Redlich  v.  Batierlee,  38  Am. 
Rep.  87. 

Witness's  Use  of  Memorandum  to  Refresh  his  Memory:  See  State  v. 
Bacon,  98  Am.  Dec.  616,  and  note  discussing  the  question;  Martin  v.  Good, 
74  Id.  545,  and  note;  Spring  Garden  M.  Tna.  Co.  v.  Evans,  74  Id.  555,  and 
note;  Ackleris  Ex'r  r.  Hickman,  35  Am.  Rep.  54,  and  note;  Commonwealth 
V.  Ford,  39  Id.  426,  and  note;  State  v.  Collins,  40  Id.  697;  Calloway  v.  Var. 
ner,  54  Id.  78. 


Spring  v.  Hager. 

[Ii6  Massacbdsktts,  186. J 
Gnsr'B  Failurx,  uroN  Retiring,  to  Bolt  Door,  ArrsR  haying  Looked 
It,  is  not  Such  Neglioencb  on  his  part  as  will  defeat  an  action  by 
him  against  the  innkeeper,  to  recover  the  value  of  property  stolen  from 
the  room  during  the  night,  if  the  existence  of  the  bolt  was  not  known 
to  him,  and  his  attention  was  not  in  any  way  called  to  it. 

Tort  against  the  keepers  of  a  country  inn  to  recover  the 
value  of  a  watch,  chain,  and  a  sum  of  money,  stolen  from  the 
clothing  of  the  plaintiff,  while  he  was  a  guest  at  the  inn. 
The  verdict  was  for  the  defendants,  and  the  plaintiff  alleged 
exceptions.    The  facts  are  sufficiently  stated  in  the  opinion. 


452  Spring  v.  Hageb.  [Mass. 

C.  C,  Conant  and  S.  D.  Conant,  for  the  plaintiff 
/.  A.  Aiken,  for  the  defendants. 

By  Court,  Field,  J.  The  only  negligence  of  the  plaintiff 
which  the  defendants  contended  that  the  evidence  proved 
was  the  neglect  of  the  plaintiff  to  bolt  the  door.  The  plain- 
tiff locked  the  door  by  a  lock  connected  with  the  door-knob. 
The  bolt  was  on  the  inside  of  the  door,  six  inches  from  the 
top,  and  the  door  was  "  about  six  feet  and  six  inches  high." 
The  plaintiff  testified  that  "  he  did  not  know  it  was  there  un- 
til after  the  robbery."  It  does  not  appear  that  there  were  any 
regulations  of  the  inn,  which  were  posted  in  the  room  or  any- 
where else,  or  which  were  in  any  manner  brought  to  the  notice 
of  the  plaintiff,  and  it  is  conceded  that  the  attention  of  the 
plaintiff  "  was  not  called  by  the  defendants  or  by  any  one  else 
to  the  bolt."  The  defendants  contended,  however,  upon  all 
the  evidence,  that  "  the  plaintiff  must  have  seen  the  bolt." 
The  first  request  of  the  plaintiff  for  a  ruling  was,  in  effect, 
that  his  failure  to  bolt  the  door  after  having  locked  it  was  not 
Buch  negligence  as  would  defeat  the  action,  even  if  he  saw 
the  bolt;  and  the  second  request  was,  in  effect,  that  his  fail- 
ure to  bolt  the  door  after  having  locked  it  would  not  defeat 
the  action,  "  if  said  bolt  was  not  known  to  the  plaintiff,  nor 
his  attention  in  any  way  called  to  the  same."  This  second 
request  raises  the  question  whether  it  was  the  duty  of  the 
plaintiff  to  examine  the  door  to  see  if  there  were  other  fasten- 
ings upon  it  besides  the  lock.  It  may  be  conceded  that  the 
bolt  and  lock  together  afforded  greater  security  than  either  of 
them  alone,  and  that,  although  the  bolt  was  in  an  unusual 
place  upon  the  door,  it  could  easily  have  been  seen  if  the 
plaintiff  had  searched  for  it. 

The  Public  Statutes,  chapter  102,  section  16,  provide  that 
"  an  innholder  against  whom  a  claim  is  made  for  loss  sus- 
stained  by  a  guest  may,  in  all  cases,  show  that  such  loss  is 
attributable  to  the  negligence  of  the  guest  himself,  or  to  his 
non-compliance  with  the  regulations  of  the  inn,  if  such  regu- 
lations are  reasonable  and  proper,  and  are  shown  to  have 
been  duly  brought  to  the  notice  of  the  guest  by  the  inn- 
holder."  This  provision  was  first  enacted  in  the  statute  of 
1853,  chapter  405,  section  3,  which  was  soon  after  the  decis- 
ion in  Berkshire  Woollen  Co.  v.  Proctor,  7  Cush.  417;  and 
although  this  statute  made  some  changes  in  the  law,  the 
clause  that  it  is  competent  for  an  innkeeper  to  show  that  the 


Oct.  1887.]  Spking  v.  Hageb.  453 

loss  is  attributable  to  the  negligence  of  the  guest  is  only  de- 
claratory of  the  common  law:  Mason  v.  Thompson,  9  Pick.  280; 
20  Am.  Dec.  471;  Berkshire  Woollen  Co.  v.  Proctor,  supra;  Elcox 
V.  Hill,  98  U.  S.  218;  Oppenheim  v.  White  Lion  Hotel  Co.,  L.  R. 
6  Com.  P.  515;  Cashill  v.  Wright,  6  El.  &  B.  890;  Morgan  v. 
Ravey,  6  Hurl.  &  N.  265. 

It  has  indeed  been  said  that,  "  in  the  absence  of  notice  of  a 
rule  of  the  inn  to  lock  and  bolt  the  door,  the  failure  to  do  s« 
is  not  legal  negligence  at  common  law":  Murchison  v.  Sergent, 
69  Ga.  206,  213.  It  has  been  often  decided  that  not  locking 
or  fastening  the  door  of  a  bedroom  is  not,  as  matter  of  law, 
negligence,  but  that  this  fact,  in  connection  with  others,  may 
be  evidence  of  negligence  for  the  jury;  and  the  weight  of  mod- 
ern authority  is,  we  think,  that  the  failure  to  lock  or  bolt  the 
door  of  a  lodging-room  at  an  inn,  when  there  is  a  lock  or  bolt 
upon  it,  is  evidence  of  negligence  for  the  jury:  Oppenheim  v. 
White  Lion  Hotel  Co.,  supra;  Spice  v.  Bacon,  36  L.  T.,  N.  S., 
896;  Herbert  v.  Markwell,  45  Id.  649. 

At  common  law,  "  innkeepers,  as  well  as  common  carriers, 
are  regarded  as  insurers  of  the  property  committed  to  their 
care,  and  are  bound  to  make  restitution  for  any  injury  or  loss 
not  caused  by  the  act  of  God  or  the  common  enemy,  or  the 
neglect  or  fault  of  the  owner  of  the  property":  Mason  v. 
Thompson,  9  Pick.  284. 

The  statutes  have  not  changed  the  general  nature  of  the 
liability  of  an  innholder;  and  subject  to  the  statutory  pro- 
visions, he  is  liable  to  his  guests  in  cases  where  no  actual 
negligence  on  the  part  of  himself  or  his  servants  is  shown. 
It  has  been  held  that  the  burden  of  proof  is  upon  the  inn- 
holder  to  show  that  the  loss  was  caused  by  the  negligence  of 
his  guest:  Norcross  v.  Norcross,  53  Me.  163.  The  language  of 
the  Public  Statutes,  chapter  102,  section  16,  implies  that  this 
burden  is  upon  the  innholder.  The  case  at  bar  is  not,  there- 
fore, an  action  for  negligence,  and  it  may  be  doubted  whether 
the  rulings  in  such  actions  upon  evidence  of  contributory 
negligence  are  in  all  respects  applicable. 

No  case  has  been  cited  in  which  it  has  been  held  that  the 
single  fact  that  the  plaintiff  did  not  bolt  his  door,  after  hav- 
ing locked  it  on  the  inside,  is  sufficient  evidence  of  negli- 
gence. 

In  Spice  v.  Bacon,  and  in  Herbert  v.  Markwell,  supra,  the 
jury  must  have  found  that  the  door  was  left  unfastened  either 
by  bolt  or  lock. 


454  Sprinq  v.  Haqer.  [Mass. 

In  Morgan  v.  Rarey,  2  Fost.  &  F.  283,  it  is  said  that  the 
plaintiff  locked  the  door,  but  did  not  bolt  it.  In  the  same 
case,  in  the  court  of  exchequer,  6  Hurl.  &  N.  265,  266,  it  is  said 
that  "witnesses  were,  however,  called  on  the  part  of  the  defend- 
ants to  prove  that  the  plaintiff  had  told  them  he  had  not  locked 
the  door."  It  was  admitted  that  he  did  not  use  the  bolt. 
There  was  a  notice  posted  over  the  mantel-piece  requesting 
"all  visitors  to  use  the  night  bolt,"  which  the  plaintiff  admitted 
he  saw,  but  said  he  did  not  read  beyond  the  word  "notice." 
Chief  Baron  Pollock,  at  nisi  pritLs,  left  the  question  of  negli- 
gence to  the  jury,  but  told  "  them  at  the  same  time  that  the 
guest  was  not  bound  to  lock  his  bedroom  door,"  etc.  The 
verdict  was  for  the  plaintiff. 

It  must  often  depend  much  upon  the  circumstances  of  tlio 
case,  the  customs  of  the  age  and  country,  and  the  usages  of 
the  place,  whether  the  plaintiff  has  been  guilty  of  such  negli- 
gence that  the  loss  can  be  said  to  be  attributable  to  it;  and  we 
cannot  say,  as  matter  of  law,  that,  on  the  facts  appearing  in 
this  case,  if  the  plaintiff  saw  the  bolt  and  did  not  use  it,  this 
was  not  some  evidence  of  negligence  to  be  submitted  to  the 
jury.  The  delivery  of  a  key  to  a  guest  may  be  held  to  be  an 
intimation  to  him  that  he  is  to  use  it  in  locking  his  door. 
The  lock,  however,  is  the  only  fastening  which  the  guest  can 
use  when  he  is  not  in  the  room.  A  bolt,  if  seen,  may  itself 
suggest  that  it  ought  to  be  used.  If,  however,  there  are  no 
regulations  brought  to  the  notice  of  a  guest  requesting  him  to 
bolt  the  door,  and  if  it  is  not  known  to  the  guest  that  there  is 
a  bolt,  and  his  attention  is  not  in  any  way  called  to  it,  we  are 
of  opinion  that  the  fact  that,  after  locking  his  door  with  the 
key,  he  does  not  search  for  a  bolt  and  find  it,  is  not  evidence 
of  negligence  on  his  part,  and  that  the  second  ruling  requested 
should  have  been  given:  See  Murchison  v.  Sergent,  suvra;  Bat- 
terson  v.  Vogel,  10  Mo.  App.  235. 

Exceptions  sustained. 


Iknkeepeb  is  Geneballt  Consisebed  Liable  as  Insurer  of  Goods  or 
Guest:  See  note  to  Read  v.  Amidon,  98  Am.  Dec.  562;  Homer  v.  Tully,  1 
Am.  Rep.  390;  Ramaley  v.  Leland,  3  Id.  728;  Wilkins  v.  Earle,  4  Id.  635; 
Adams  v.  Clem,  5  Id.  524;  CtUler  v.  Bonney,  18  Id.  127,  and  note;  Dunhier  v. 
Day,  41  Id.  772;  but  is  relieved  from  responsibility  by  act  of  God,  act  of 
public  enemies,  or  the  negligence  or  fraud  of  the  guest:  Read  v.  Amidon,  98 
Am.  Dec.  560,  and  note  collecting  prior  cases;  Dunbier  v.  Day,  41  Am.  Rep. 
772,  775,  and  note;  Murchison  v.  Sergent,  47  Id.  754;  and  see  Reubemtein  v. 
Cruikshanka,  52  Id.  806. 


Nov.  1887.]  Bath  v.  Metcalp.  455 

Bath  v.  Metoalf. 

[146  Massachusetts,  274.J 

Officees  Who  Maitti  Wboxoful  Arrest  are  Answerable  Jointly,  in 
an  action  for  false  imprisonment,  with  those  who  cause  and  take  part 
in  a  subsequent  detention  under  it;  although,  if  the  arrest  had  been 
lawful,  they  would  not  be  liable  for  a  subsequent  wrongful  imprison- 
ment in  which  they  took  no  part. 

OmcERs  Who  Cause  and  Take  Part  in  PROLONGrNa  Imprisonment  of 
One  Arrested  without  Warrant,  beyond  the  doors  of  the  lock-up, 
for  the  purpose  of  sending  him  out  of  town,  after  the  marshal  has  reason 
to  believe  him  innocent,  and  has  made  up  his  mind  to  release  him,  are 
liable  ia  an  action  for  false  imprisonment,  even  if  the  arrest  had  been 
lawful,  and  a  fortiori  if  the  arrest  was  unlawful. 

Vbedict  against  All  Officers  Jointly,  in  Action  for  False  Imprison- 
ment, 13  Proper,  but  only  for  the  imprisonment  between  the  lock-up 
and  the  railroad  station,  and  on  the  ground  that  the  arrest  was  wrongf  al, 
where  a  person  was  arrested,  without  a  warrant,  on  a  charge  of  felony, 
by  two  police  officers  of  a  city,  and  taken  to  the  lock-up,  and  afterwards 
the  city  marshal,  having  reason  to  believe  that  the  prisoner  was  inno- 
cent, and  having  made  up  his  mind  to  release  him,  sent  him,  the  assist- 
ant marshal  taking  part  in  such  act,  from  the  lock-up  to  the  railroad 
station,  in  the  custody  of  another  officer 

Tort  for  false  imprisonment  against  seven  defendants,  Met- 
calf,  Pettis,  Wright,  Hadd,  Wheeler,  Graves,  and  O'Malley. 
On  May  25,  1886,  the  plaintiff  and  one  Pierce,  while  waiting, 
about  noon,  in  the  railroad  depot  at  Springfield,  to  take  the 
train  for  Worcester,  were  arrested  on  suspicion  of  being  pick- 
pockets, by  the  defendants,  Hadd  and  Wheeler,  police  officers, 
and  by  two  detectives,  and  in  spite  of  their  protestations  of  in- 
nocence, and  oflfers  to  prove  their  identity,  were  taken  to  the 
police  station  and  locked  up.  The  defendant  Pettis,  the  city 
marshal,  saw  them  soon  afterwards  and  promised  to  investi- 
gate their  case.  Pettis  returned  about  five  o'clock  in  the  after- 
noon, and  said  that  be  would  send  them  on  the  next  train  to 
Worcester;  but  they  were  detained  in  the  cell  until  nearly 
eight  o'clock,  when  the  defendant  Wright,  the  assistant  city 
marshal,  unlocked  the  door,  and  turned  them  over  to  the  de- 
fendant Graves  and  another  policeman,  who  accompanied 
them  to  the  railroad  station,  and  saw  that  they  were  on  the 
train.  The  defendant  Metcalf  was  the  mayor,  and  had  con- 
sented to  the  hiring  of  the  two  detectives  who  assisted  in  the 
arrest.  The  defendant  O'Malley  was  present  when  the  arrest 
was  made.  It  appeared  that  on  the  day  of  the  arrest,  and 
the  day  before,  complaints  had  been  made  that  pickpockets 
were  at  work  at  the  railroad  station;  and  that  as  the  officers 


456  Bath  v.  Metcalf.  [Mass. 

who  made  the  arrest  were  going  along  the  side  of  the  depot, 
Butler,  one  of  the  detectives,  pointed  to  the  plaintifif  and 
Pierce,  and  said  that  they  were  pickpockets,  whereupon  the 
arrest  was  made.  The  jury  found  in  favor  of  the  defendants 
Metcalf  and  O'Malley.  and  against  the  rest.  The  defendants 
alleged  exceptions. 

F.  W.  Blackmer  and  E.  H.  Vaughan,  for  the  plaintiff. 

G.  Wells,  for  the  defendants. 

By  Court,  Holmes,  J.  This  is  an  action  for  false  impnson- 
ment  against  seven  defendants,  five  of  whom  the  jury  have 
found  guilty.  Of  these  five,  the  defendants  Hadd  and 
Wheeler  made  the  original  arrest,  without  a  warrant,  on  a 
charge  of  felony.  We  cannot  say  that  the  evidence,  if  be- 
lieved, showed  that  Hadd  and  Wheeler  had  reasonable 
grounds  to  suspect  the  plaintifi"  of  being  a  pickpocket  (sup- 
posing the  justification  to  be  well  pleaded),  whether  the  ques- 
tion was  properly  one  for  the  jury,  or  was  for  the  court,  like 
other  questions  of  reasonable  cause:  Compare  Rohan  v. 
Sawin,  5  Cush.  281;  Good  v.  French,  115  Mass.  201;  Davis  v. 
Russell^  5  Bing.  354;  Hill  v.  Yates,  8  Taunt.  182;  Mure  v. 
Kaye,  4  Taunt.  34;  2  Hawk.  P.  C,  c.  12,  sec.  18;  2  Inst.  52. 
If  the  original  arrest  was  wrongful,  those  who  made  it  were 
answerable  for  the  subsequent  detention  of  the  plaintifi" under 
it:  Murphy  v.  Countiss,  1  Harr.  (Del.)  143;  Powell  v.  Hodgetts, 
2  Car.  &  P.  432;  and  although  the  officers  who  carried  the 
plaintiff  in  custody  from  the  lock-up  to  the  railroad  station, 
after  they  had  determined  to  release  him,  would  have  been 
liable,  even  if  the  previous  imprisonment  had  been  lawful,  we 
do  not  think  this  continuation  of  the  unlawful  imprisonment 
so  remote  that  the  jury  could  not  properly  hold  Hadd  and 
Wheeler  responsible  for  it:  See  also  Roswell  v.  Prior,  12  Mod, 
635,  640. 

The  defendant  Pettis  was  city  marshal,  and  whether  re- 
Bponsible  for  the  arrest  and  detention  of  the  plaintiff  in  the 
lock-up  or  not,  sent  the  plaintiff  to  the  railroad  station  in  cus- 
tody, after  he  had  reason  to  believe  him  innocent,  and  had 
made  up  his  mind  to  release  him.  The  defendant  Wright,  the 
assistant  marshal,  took  part  in  sending  the  plaintiff  to  the 
station,  and  the  defendant  Graves  was  the  officer  who  took 
him  there,  only  releasing  him  when  on  the  train,  and  just  be- 
fore it  started. 


Nov.  1887.]  Bath  v.  Metcalf.  457 

As  we  have  said,  we  think  that,  even  if  the  arrest  had  been 
lawful,  the  ofiQcers  would  have  had  no  right  to  prolong  the  im- 
prisonment beyond  the  doors  of  the  lock-up  for  the  purpose 
of  sending  the  plaintiff  out  of  town,  and  would  have  been 
liable,  whether  they  had  a  right  to  release  him  without  bring- 
ing him  before  a  magistrate  or  not:  See  McCloughan  v.  Clay- 
ton, Holt  N.  P.  478,  480;  1  Hale  P.  C.  592;  Brock  v.  Stimson, 
108  Mass.  520;  11  Am.  Rep.  390;  Phillips  v.  Fadden,  125; 
Mass.  198;  Caffrey  v.  Drugan,  144  Id.  294.  The  only  pur- 
pose for  which  an  imprisonment  without  a  warrant  can  be 
justified,  in  circumstances  like  the  present,  is,  that  further  pro- 
ceedings may  be  instituted  in  due  form:  Rohan  v.  Sawin,  5 
Cush.  285;  Wright  v.  Court,  6  Dowl.  &  R.  623,  624;  4 
Barn.  &  C.  596.  A  fortiori,  these  oflBcers  are  liable  if  the 
original  arrest  was  unlawful,  for  then  the  whole  detention 
under  it  was  unlawful:  Aaron  v.  Alexander,  3  Camp.  35; 
Griffin  V.  Coleman,  4  Hurl.  &  N.  265.  It  thus  appears  that 
the  evidence  warranted  a  verdict  against  each  of  the  de- 
fendants named,  and  against  all  of  them  jointly;  and  that  the 
instructions  asked  to  the  contrary  were  properly  refused. 

If  the  arrest  had  been  made  upon  reasonable  grounds  of 
suspicion  against  the  plaintiff,  the  defendants  Hadd  and 
Wheeler  could  not  have  been  held  liable  for  a  subsequent 
wrongful  imprisonment  in  which  they  took  no  part.  On  the 
other  hand.  Graves  at  least  was  not  answerable  for  the  im- 
prisonment before  the  plaintiff  was  taken  from  the  police  sta- 
tion to  the  train,  as  he  took  no  part  in  that:  Aaron  v.  Alex- 
ander and  Powell  v.  Hodgetts,  supra. 

It  follows  that  a  verdict  could  be  found  against  the  five 
defendants  jointly  only  for  the  imprisonment  between  the 
lock-up  and  the  train,  and  on  the  ground  that  the  arrest  was 
wrongful.  We  regret  that  it  does  not  appear  that  these  con- 
siderations were  brought  distinctly  to  the  jury's  attention. 
But  we  cannot  say  that  they  were  not;  the  exceptions  are 
only  to  the  refusal  of  rulings  which  were  properly  refused; 
and  as  the  jury  were  fully  instructed  that  they  could  not  find 
a  verdict  against  two  or  more  defendants  unless  they  found 
that  all  such  defendants  participated  in  the  same  imprison 
ment  and  were  parties  to  a  joint  wrong,  we  must  assume  that 
the  verdict  went  on  the  proper  ground,  and  covered  the  proper 
time. 

Exceptions  overruled. 


458  MuLCHAHEY  V.  Washbdrn  Cab  Wheel  Co.     [Mass. 

Pbbsok  Injured  by  Joint  Tort  mat  Sub  Axl  or  Any  of  Tort-fe-^soks: 
Note  to  Kirhwood  v.  MiUer,  73  Am.  Dec,  144;  Allred  v.  Bmy,  97  Id.  283; 
McMannua  v.  Lee,  97  Id.  386;  Blosa  v.  Plymah,  100  Id.  752;  but  can  have 
but  one  satisfaction:  Note  to  Kirhvoood  v.  MiUer,  73  Id.  145;  Bennett  v. 
Hood,  79  Id.  705;  Stone  v.  Dickinson,  81  Id.  727;  Ayer  v.  Ashmead,  83  Id. 
154;  Allred  v.  Bray,  sup^-a;  McMannus  v.  Lee,  supra;  Blosa  v.  Plymak,  supra; 
Lord  V.  Tiffany,  50  Am.  Rep.  689;  except  for  costs:  Ayer  v.  Ashmead,  siiprar 
Lord  V.  Tiffany,  supra. 

Officers'  Liability  for  Arrest  and  Detention  without  Warrant: 
See  note  to  Eanes  v.  State,  44  Am.  Dec.  202;  note  to  Mitchell  v.  State,  54  Id. 
268;  Brock  v.  Stimsan,  11  Am.  Rep.  390. 


MULOHAHRY  V.  WaSHBURN  CaE  WhEEL  Co. 
[145  Massachusetts,  28LJ 
Instantaneous  Death  and  Absence  of  Conscious  Suffering  after 
Fatal  Injury  are  Distinct,  and  therefore  a  ruling  that  there  was  no 
evidence  of  conscious  sufiEering  by  the  intestate,  and  consequently  that 
the  plaintiff  was  only  entitled  to  recover  nominal  damages,  is  correct, 
and  not  inconsistent  with  a  ruling  that  there  was  evidence  to  warrant 
the  jury  in  finding  that  a  cause  of  action  accrued  to  the  intestate  in  his 
lifetime,  and  survived  to  his  personal  representative,  where,  in  an  action 
by  an  administratrix  to  recover  damages  sustained  by  the  intestate  in 
his  lifetime  by  the  breaking  of  a  machine  upon  which  he  was  employed 
by  the  defendant,  it  appeared  that  the  intestate  was  found  about  ten 
minutes  after  the  accident,  with  his  body  crushed  and  his  bowels  dis- 
rupted, and  that,  although  breathing,  he  was  unconscious,  and  died 
almost  immediately  in  that  state. 

Tort  by  Kate  Mulchahey,  administratrix  of  Richard  Mul- 
chahey,  to  recover  damages  sustained  by  Mulchahey  in  his  life- 
time, by  the  breaking  of  a  piston-rod  of  a  steam-hammer, 
which  he  was  engaged  in  operating  for  the  defendant.  The 
report  of  the  presiding  judge  dealt  only  with  the  question  of 
damages.  The  evidence  tended  to  show  that  when  the  rod  broke 
it  was  blown  out,  the  whole  shop  was  filled  with  escaping  steam, 
and  that  all  the  workmen  ran  out,  and  returned  when  it 
was  safe  to  do  so.  The  deceased  was  found  five  or  ten  min- 
utes after  the  accident,  with  his  body  crushed  and  his  bowels 
disrupted,  and  although  breathing,  he  was  unconscious,  and 
died  in  a  few  moments  afterwards,  without  recovering  con- 
sciousness. The  court  ruled  that  there  was  evidence  to  war- 
rant the  jury  in  finding  that  a  cause  of  action  accrued  to  the 
intestate  in  his  lifetime,  and  survived  to  his  personal  repre- 
sentative; that  there  was  no  evidence  to  warrant  the  jury  in 
finding  that  the  intestate  endured  any  conscious  pain  or  suf- 
fering; and  that,  upon  the  evidence,  the  plaintiif  was  only 


Nov.  1887.]    MuLCHAHEY  V.  Washburn  Car  Wheel  Co.    459 

entitled  to  recover  nominal  damages,  if  the  defendant  was 
liable.  The  defendant  submitted  to  a  verdict  for  nominal  dam- 
ages, the  plaintiff  excepting  to  the  ruling.  A  verdict  was 
accordingly  returned  for  one  dollar.  It  was  agreed  that  if  the 
ruling  was  correct,  the  verdict  was  to  stand;  but  if  not,  a  new 
trial  was  to  be  granted  upon  the  whole  case 

W.  S.  B.  Hopkins,  for  the  plaintiff. 

J^.  P.  Goulding,  for  the  defendant. 

By  Court,  Devens,  J.  As  the  report  of  the  presiding  judge 
deals  only  with  the  question  of  damages,  the  evidence  tend- 
ing to  make  a  case  of  negligence  on  the  part  of  the  defend- 
ant, and  to  show  that  an  action  therefor  accrued  to  the 
intestate  in  his  lifetime,  is  not  stated.  It  is  assumed  by  the 
report  that  it  would  be  suflBcient  to  sustain  a  verdict. 

The  plaintiff  was  justified  in  contending,  upon  the  evidence, 
that  the  body  of  the  deceased  was  not  found  until  some  ten 
minutes  after  the  accident;  that  although  then  unconscious, 
he  was  still  alive;  and  therefore  that  his  death  was  not  in- 
stantaneous. The  ruling  of  the  presiding  judge  was  in 
accordance  with  this  contention;  but  he  further  ruled  that 
there  was  no  evidence  of  conscious  suffering  by  the  intestate, 
and  therefore  that  the  plaintiff  was  entitled  only  to  nominal 
damages.  There  was  no  evidence  of  any  expenses  or  loss  in- 
curred before  death  by  reason  of  the  accident,  which  in  itself 
might  afford  ground  for  substantial  damages:  Bancroft  v.  Bos- 
ton and  Worcester  R.  R.,  11  Allen,  34.  The  question  is  as  to 
the  correctness  of  the  latter  ruling. 

The  plaintiff  deems  these  rulings  inconsistent  each  with  the 
other.  We  do  not  perceive  the  inconsistency.  Instantaneous 
death  and  absence  of  conscious  suffering  after  a  fatal  injury 
are  readily  distinguishable,  and  have  been  distinguished  in 
our  decisions.  The  continuance  of  life  after  the  accident,  and 
not  insensibility  or  want  of  consciousness,  is  the  test  by  which 
it  is  determined  whether  a  cause  of  action  survives:  Hollen' 
heck  V.  Berkshire  R.  i?.,  9  Cush.  478.  But  as  the  plaintiff  can 
only  recover  such  damages  as  she  can  show  were  sustained  by 
her  intestate,  if  he  became  instantly  insensible,  and  so  re- 
mained until  his  death,  nothing  can  be  recovered  for  any 
physical  or  mental  suffering  sustained  by  him.  Nothing  can 
be  recovered  by  the  administratrix  on  account  of  the  death 
which  subsequently  ensued:  Bancroft  v.  Boston  and  Worcester 
R.  R.,  supra.     In  Kennedy  v.  Standard  Sugar  Refinery,  125 


460  MuLCHAHEY  V.  Washbukn  Car  Wheel  Co.      [Mass. 

Mass.  90,  28  Am.  Rep.  214,  where  the  intestate  fell  from  a 
platform  twenty  feet  in  height,  became  unconscious  on  striking 
the  ground,  and,  in  one  aspect  of  the  evidence,  remained  so 
until  his  death,  the  plaintiff  was  allowed  at  the  trial,  by  the 
judge  at  nisi  prius,  to  recover  for  mental  suffering  endured 
during  his  fall.  It  was  held  in  this  court  that  the  burden  of 
proof  was  upon  the  plaintiff  to  show  that  her  intestate  actually 
endured  mental  suffering  during  the  fall,  before  she  could 
recover  damages  on  that  account;  that  as  no  proof  was  fur- 
nished of  any  mental  suffering  during  the  fall,  and  as  the 
question  whether  he  did  suffer  mental  terror  or  distress  was 
purely  a  matter  of  conjecture,  no  damages  could  be  recovered 
on  that  account.  Whether  the  person  injured  endured  con- 
scious suffering  has  sometimes  depended  upon  the  question 
whether  his  death  was  instantaneous;  but  the  two  inquiries 
are  distinct:  Corcoran  v.  Boston  and  Albany  R.  R.,  133  Mass. 
507;  Tully  v.  Fitchburg  R.  R.,  134  Id.  499;  Riley  v.  Connecticut 
River  R.  R.,  135  Id.  292. 

That  an  adequate  cause  of  the  intestate's  death,  and  one 
which  must  be  held  to  have  produced  it,  is  found  in  the  crush- 
ing of  his  body  and  disruption  of  his  bowels,  must  be  con- 
ceded. Viewed  in  the  most  favorable  light  for  the  plaintiff, 
this  certainly  fails  to  show  any  conscious  pain  or  suffering  on 
the  part  of  the  intestate.  When  found,  although  breathing, 
he  was  unconscious.  Upon  this  state  of  facts,  even  if  it  were 
possible  that  there  was  some  brief  conscious  suffering,  evi- 
dence of  it  is  not  afforded,  and  it  is  left  purely  conjectural. 
The  presiding  judge  did  not  undertake  to  say,  as  the  plaintiff 
urges,  that  because  ten  minutes  after  the  accident  the  victim 
of  it  could  not  speak  and  was  unconscious,  he  might  not  have 
passed  into  that  condition  after  brief  but  terrible  suffering, 
but  said,  in  substance,  that  the  case  did  not  afford  evidence 
that  he  had  suffered  consciously.     This  was  correct. 

The  plaintiff  urges  that  the  case  at  bar  strongly  resembles 
Nourse  v.  Packard,  138  Mass.  307;  but  the  evidence  here  want- 
ing was  afforded  in  that  case.  The  dead  body  of  the  intes- 
tate was  there  found  under  a  heap  of  loose  grain,  and  there 
was  expert  testimony  that  he  died  from  suffocation,  and  that 
a  person  situated  as  he  was  would  retain  consciousness  from 
three  to  five  minutes.  It  was  a  reasonable  conclusion  that  he 
lived  in  a  state  of  conscious  suffering  for  a  few  minutes  after 
the  fall  of  the  grain  upon  him  which  caused  his  death. 

Judgment  on  the  verdict. 


Nov.  1887.]  Winn  v.  Sanfobd.  461 

Cause  op  Action  Survives  in  Some  States,  if  person  injured  by  negli- 
gence of  another  lives  but  a  moment:  Note  to  Carey  v.  Berhahire  It.  B.,  4S 
Am.  Dec.  635,  where  the  question  ia  considered;  Kellow  v.  Central  Iowa  B'y, 
56  Am.  Rep.  858;  and  damages  for  the  mental  suffering  of  the  intestate  may 
be  recovered:  Note  to  Carey  v.  Berkshire  B.  B.,  48  Am.  Deo.  638;  compare 
Kennedy  v.  Standard  Sugar  Befinery,  28  Am.  Rep.  214. 


"Winn  v.  Sanfobd. 

[145  MASSACHr SETTS,  302.] 

SuRKTT  05  Joint  and  Several  Bond  Executed  to  Husband  bt  Whs 
AS  Principal  Obuqor  cannot  Set  up  Incapacitt  of  the  principal  to 
contract  with  her  husband  as  a  defense  to  an  action  on  the  bond. 

Contract  upon  the  following  bond,  executed  by  Susan  B. 
Winn,  as  principal,  and  the  defendant,  Frederick  C.  Sanford,^ 
as  surety:  "Know  all  men  by  these  presents,  that  we,  Susan 
B.  Winn,  wife  of  John  Winn,  of  Nantucket,  as  principal,  and 
Frederick  C.  Sanford,  of  Nantucket,  as  surety,  are  holden  and 
Btand  firmly  bound  unto  John  Winn,  of  Nantucket,  above 
named,  in  the  sum  of  three  hundred  dollars,  to  the  payment 
of  which  to  the  said  John  Winn,  or  his  executors,  administra- 
tors, or  assigns,  we  hereby  jointly  and  severally  bind  ourselves, 
our  heirs,  executors,  and  administrators.  The  condition  of 
this  obligation  is  such  that,  whereas,  in  a  settlement  of  diflfer- 
ences  between  said  John  Winn  and  Susan  B.  Winn,  it  was 
agreed  by  said  Susan  B.  Winn,  and  on  her  behalf,  that  she 
should  give  to  said  John  Winn  a  bond,  with  surety,  *to  release 
dower  whenever  requested,  and  make  no  further  claim  on  said 
John  Winn  for  any  support,  or  for  any  cause  whatever.'  Now, 
therefore,  if  said  Susan  B.  Winn  shall,  whenever  requested, 
sign  release  of  dower  in  any  real  estate  of  said  John  Winn, 
and  shall  make  no  further  claim  upon  him  for  any  support, 
or  for  any  cause  whatever,  then  this  obligation  shall  be  void; 
otherwise  it  shall  be  and  remain  in  full  force  and  virtue."  The 
court  ruled,  as  a  matter  of  law,  that  the  bond  could  not  bo 
made  the  basis  of  any  legal  claim  against  the  defendant;  that 
Mrs.  Winn  not  being  liable  to  her  husband  under  it,  the  defend- 
ant was  not  liable.     The  plaintiff  alleged  exceptions. 

J.  Brown,  for  the  plaintiff. 

L.  L.  Holmes,  for  the  defendant. 

By  Court,  Devens,  J.  It  is  true,  as  a  general  proposition^ 
that  the  liability  of  a  guarantor  or  of  a  surety  is  limited  by 


462  Winn  v.  Sanfobd.  [Mass. 

that  of  his  principal.  But  to  this  there  are  certain  exceptions. 
Thus,  where  the  principal  is  excused  from  liability  for  rea- 
sons personal  to  himself,  and  which  do  not  afifect  the  debt  he 
has  incurred  or  the  promise  he  has  made,  the  surety  would 
not  be  entitled  to  the  benefit  of  this  excuse.  In  such  case,  he 
is  in  a  certain  sense  an  independent  promisor,  and  must  per- 
form his  promise. 

In  Magga  v.  Ames,  4  Bing.  470,  the  defendant  had  guaran- 
teed the  purchases  made  by  a  married  woman  incapable  of 
making  a  contract;  the  question  in  the  case  was  whether  this 
guaranty  should  have  been  in  writing;  but  it  is  assumed 
throughout,  by  court  and  counsel,  that  if  it  had  been  in 
writing  the  defendant  would  have  been  liable,  although  there 
could  have  been  no  liability  on  the  part  of  the  principal. 

In  a  similar  manner,  where  one  becomes  a  surety  for  the 
performance  of  a  promise  made  by  a  person  incompetent  to 
contract,  his  contract  is  not  purely  accessorial,  nor  is  his  lia- 
bility necessarily  ascertained  by  determining  whether  the  prin- 
cipal can  be  made  liable.  Fraud,  deceit  in  inducing  the  prin- 
cipal to  make  his  promise,  or  illegality  thereof,  all  of  which 
would  release  the  principal,  would  release  the  surety,  as  these 
afiect  the  character  of  the  debt;  but  incapacity  of  the  principal 
party  promising  to  make  a  legal  contract,  if  understood  by  the 
parties,  is  the  very  defense  on  the  part  of  the  principal  against 
which  the  surety  assures  the  promisee:  Yale  v.  Wheelock,  109 
Mass.  502. 

The  bond  in  the  case  at  bar  is  several  as  well  as  joint.  It 
appears  from  it  that  Mrs.  Winn  is  the  wife  of  the  obligee,  and 
it  recites  the  agreement  made  between  them.  This  agreement 
made  by  her  is  void,  so  far  as  the  case  now  discloses,  solely 
because  of  her  incapacity  to  contract;  but  this  should  not  re- 
lease the  defendant  from  his  engagement  that  she  should  per- 
form the  promise  made  by  her.  The  defense  which  Mrs.  Winn 
personally  has,  resulting  from  her  situation,  should  not  be 
open  to  him. 

Nor  do  we  perceive  that  any  distinction  can  be  made,  as 
suggested  by  the  defendant,  between  the  promise  of  a  married 
woman,  which  is  void,  and  that  of  a  minor,  which  is  voidable. 
In  either  case,  the  surety  assures  the  promisee  against  the  in- 
capacity of  the  principal  to  make  a  legal  contract,  whether  it 
be  more  or  less  complete. 

The  cases  in  which  it  has  been  held  that  the  coverture  of 
the  principal  promisor  at  the  time  of  making  her  promise  will 


Nov.  1887.]  Wheaton  v.  Tbtmble.  463 

not  discharge  the  surety,  when  such  coverture  was  known  to 
him,  are  numerous,  and  have  arisen  on  many  descriptions  of 
contract:  Smyley  v.  Head,  2  Rich.  Eq.  590;  45  Am.  Dec.  750; 
Kimball  v.  Newell,  7  Hill,  116;  Nabb  v.  Koontz,  17  Md.  283; 
Jones  v.  Crosthwaite,  17  Iowa,  393;  Weed  Sewing  Machine  Co. 
v.  Maxwell,  63  Mo.  486;  St.  Albans  Bank  v.  Dillon,  30  Vt.  122; 
73  Am.  Dec.  295;  Davis  v.  Statts,  43  Ind.  103;  13  Am.  Rep. 
882;  Stillwell  v.  Bertrand,  22  Ark.  376. 
Exceptions  sustained. 

CovERTDUB  at  Principal  Debtor  will  kot  Discharge  Sihietyj  Smyley  v. 
Head,  45  Am.  Dec.  760 ;  St.  A  Ibana  Bank  v.  DiOon,  73  Id.  205,  and  note 
298;  Allen  v.  BerryhUl,  1  Am.  Rep.  312,  per  Dillon,  C.  J.;  Dama  t.  Statta, 
13  Id.  382;  Hicia  v.  Randolph,  27  Id.  760. 


Wheaton  v.  Trimble. 

ri45  Massachusetts,  345.  J 
FlNDINQ  THAT   HuSBAND    ACTED    A3    DULY    AuTHOKIZBD  AqXNT  OV  WivB, 

in  employing  a  person  to  perform  labor  upon  the  wife's  bouse,  is  jnsti- 
fied,  in  a  proceeding  to  enforce  a  mechanic's  lien  therefor,  by  evidence 
that  the  husband  had  general  management  of  the  property,  that  he  em* 
ployed  the  petitioner  to  perform  the  labor,  that  the  wife  knew  he  was 
working  upon  the  house,  and  that  she  personally  gave  him  directions  as 
to  parts  of  the  work. 

Petition  to  enforce  a  mechanic's  lien.  The  court  found  for 
the  petitioner,  and  the  respondent  alleged  exceptions.  The 
facts  are  stated  in  the  opinion. 

L.  N.  Francis,  for  the  petitioner. 
H.  J.  Fuller,  for  the  respondent. 

By  Court,  Morton,  C.  J.  The  labor  for  which  the  petitioner 
seeks  to  enforce  a  lien  was  performed  by  him  upon  the  house 
of  the  respondent.  He  was  employed  by  the  respondent's 
husband;  and  the  presiding  justice,  who  tried  the  case  with- 
out a  jury,  has  found  that,  in  employing  the  petitioner,  the 
husband  acted  as  the  duly  authorized  agent  of  the  respondent. 
The  only  question  before  us  is,  whether  there  was  evidence  to 
justify  this  finding.  There  was  evidence  tending  to  show  that 
the  work  was  done  upon  her  house,  and  was  for  her  benefit; 
that  she  knew  that  the  petitioner  was  working  upon  the  house, 
and  was  present  at  difierent  times,  and  personally  gave  him 
directions  as  to  partsof  the  work;  that  she  selected  the  papers 


i64  .  ToMLiNSON  V.  Bury.  [Maes. 

for  the  upper  rooms,  and  the  bills  for  them  were  afterwards 
paid  by  her  husband.  The  husband  and  wife  both  testified 
that  he  was  not  her  agent;  but  upon  cross-examination,  she 
testified  that  "her  husband  manages  the  property  just  as  he 
used  to  when  it  was  his;  that  she  allows  him  to  go  ahead, 
and  do  just  as  he  pleases  with  the  whole  property,  and  that 
ever  since  it  has  been  in  her  name  he  has  managed  it  just  as 
he  did  before."  It  was  for  the  court  to  determine  what  credit 
should  be  given  to  their  testimony.  Considering  the  relation 
which  she  bore  to  her  husband  and  to  the  estate,  that  she 
knew  the  petitioner  was  working  for  her  benefit,  and  took  part 
in  directing  his  work,  and  that  she  substantially  testified  that 
she  had  put  the  general  management  of  the  property  in  the 
hands  of  her  husband,  it  is  not  an  unreasonable  inference  that, 
in  contracting  with  the  petitioner,  the  husband  was  acting  as 
her  authorized  agent.  The  evidence  is  quite  as  strong  as  it 
was  in  the  case  of  Arnold  v.  Spurr,  130  Mass.  347,  in  which  it 
was  held  that  the  question  of  agency  should  have  been  sub- 
mitted to  the  jury. 
Exceptions  overruled. 

Mbohadio's  Lien  Cssatbd  on  Wipe's  Estate  through  Husbakb's 
Aqenct,  Possibility  op:  See  note  to  Loonie  v.  Hogan,  61  Am.  Dec.  693; 
KnoU  V.  Carpmter,  75  Id.  779;  TttUle  v.  Howe,  100  Id.  206;  Lauer  v.  Ban- 
dow,  28  Am.  Rep.  671;  Flannery  v.  Sohrmayer,  33  Id.  36;  and  see  also  O'Niel 
V.  Perdvai,  Slid.  634. 


TOMLINSON    V.    BUEY. 

ri45  MA88A.CHVBSrr8,  M6.  | 
LSGATEB  WHOSE  LeOAOT  IS   SfEOIFIO  IS  ENTITLED  TO  C!ONTBIBIITIOir   nOM 

Holders  ov  Other  Speoifio  Legacies,  if  his  legacy  is  appropriated  to 
satisfy  the  lawful  claims  of  the  testator's  widow,  who  has  waived  the 
provisions  of  the  will  in  her  favor. 

Bequest  op  "Bank  Stock"  is  to  be  Ck>NSTRUED  as  Desoribino  Testa- 
tor's Deposits  in  Various  Savings  Banks,  he  having  no  shares  of  stock 
of  any  bank,  nor  any  other  property  in  banking  associations. 

Lboact  is  Spboipic,  and  not  General,  when  it  is  of  "all  the  mill  stock 
and  bank  stock  remaining  in  my  name  after  the  decease  of  my  said 
wife." 

Bill  in  equity  by  certain  legatees  to  obtain  contribution 
from  other  legatees.  A  decree  was  ordered  for  the  plaintiffs, 
and  the  defendants  appealed.  The  facts  are  stated  in  the 
opinion. 


Nov.  1887.]  ToMLiNsoN  V.  Bury.  465 

J.  M.  Morton  and  A.  J.  Jennings^  for  the  plaintiffs. 
M.  Reed,  for  the  defendants. 

By  Court,  Devens,  J.  The  parties  litigant  have  agreed,  if 
the  plaintiffs  whose  legacy  has  been  appropriated  to  the  claims 
of  the  widow  are  entitled  to  contribution  from  other  lega- 
tees, as  to  the  amount  to  which  contribution  shall  be  made, 
and  also  as  to  the  proportions  in  which  it  shall  be  distributed. 
This  leaves  open  as  the  only  question  for  discussion,  whether 
they  are  thus  entitled.  This  depends  apparently  upon  the  in- 
quiry whether  the  legacy  to  them  is  to  be  held  as  specific  or 
general.  The  rule  is  well  settled  that,  if  a  legacy  is  specific, 
and  is  appropriated  to  the  payment  of  debts,  the  legatee  (if 
the  general  or  residuary  legacies  are  not  sufiBcient)  is  entitled 
to  contribution  from  the  holders  of  other  specific  legaciest 
Famum  v.  Bascom^  122  Mass.  282.  Nor  is  there  any  distinc- 
tion between  such  a  case  and  one  where  a  specific  legacy  is 
appropriated  to  satisfy  the  lawful  claims  of  the  widow  of  the 
testator,  who  has  waived  the  provisions  of  the  will  made  in 
her  favor.  To  the  extent  to  which  a  specific  legacy  has  been 
taken  by  the  widow,  the  legatee  would  be  entitled  to  contribu- 
tion, as  much  as  if  it  had  been  taken  for  the  payment  of  debts. 
It  is  equally  well  settled  that,  if  the  claim  for  contribution  of 
the  plaintiffs  rested  upon  the  fact  that  they  were  residuary 
legatees,  it  could  not  be  maintained.  Nothing  is  given  by  a 
residuary  clause  except  upon  the  condition  that  something  re- 
mains after  all  paramount  claims  upon  the  testator's  estate  are 
satisfied:  Richardson  v.  Hall,  124  Id.  228,  233. 

The  gift  to  the  plaintiffs  by  the  fourth  clause  of  the  testa- 
tor's will  was  "  all  the  mill  stock  and  bank  stock  remaining 
in  my  name  after  the  decease  of  my  said  wife."  The  plaintiffs 
were  also  residuary  legatees  and  devisees  under  the  sixth 
clause  of  the  will,  but  they  make,  and  could  make,  no  claim 
on  that  account  to  any  contribution.  The  words  "bank 
stock  "  are  to  be  construed  as  describing  the  testator's  deposits 
in  various  savings  banks.  He  had  no  shares  of  the  capital 
stock  of  any  bank,  nor  any  other  property  in  banking  associ- 
ations, and  while  the  expression  is  not  accurate,  it  must  be 
held,  under  these  circumstances,  to  describe  these  deposits. 
The  question  is  not  of  importance  in  the  case  at  bar,  as,  if  there 
is  a  specific  legacy  of  the  "  mill  stock  "  which  has  been  taken, 
the  plaintiff  would  be  entitled  to  contribution  from  the  other 
legatees,  and   the  amount  has  been  agreed    upon.     Specific 

AM.  St.  Rep..  Vol.  I.  — 80 


-466  ToMLixsoN  V.  Bury.  [Mass. 

legacies  are  held  to  contribute  proportionally  to  the  charges  ^ 
•on  the  estate,  unless  from  the  expressions  of  the  will,  or  from 
the  position  of  the  legatee,  as  where  he  receives  a  legacy  in 
lieu  of  a  debt  or  claim  against  the  estate,  it  is  seen  that  such 
legacy  is  entitled  to  a  preference:  Farnum  v.  Bascom,  supra. 
There  is  a  presumption  of  intended  equality  between  general 
legatees  as  a  class,  and  between  specific  legatees  as  a  class. 
A  specific  legacy  is  one  which  separates  and  distinguishes  the 
property  bequeathed  from  the  other  property  of  the  testator, 
BO  that  it  can  be  identified.  It  can  only  be  satisfied  by  the 
thing  bequeathed;  if  that  has  no  existence,  when  the  bequest 
-would  otherwise  become  operative,  the  legacy  has  no  efiect. 
If  the  testator  subsequently  parts  with  the  property,  even  if 
lie  exchanges  it  for  other  property,  or  purchases  other  property 
'With  the  proceeds,  the  legatee  has  no  claim  on  the  estate  for 
the  value  of  his  legacy.  The  legacy  is  adeemed  by  the  act  of 
the  testator.  Tried  by  these  tests,  the  legacy  of  the  testator's 
"  mill  stock  and  bank  stock  "  must  be  held  specific.  It  could 
only  be  satisfied  by  this  mill  and  bank  stock,  and  if  the  tes- 
tator had  disposed  of  them,  or  of  any  part  of  them,  to  that  ex- 
tent the  legacy  would  have  been  adeemed. 

Nor,  in  considering  whether  the  legacy  is  specific,  is  it  im- 
portant that  it  was  of  such  of  these  stocks  as  remained  after 
the  decease  of  his  wife.  He  had  bequeathed  to  her  "  the  use, 
improvement,  and  income  of  all"  his  estate,  real  and  per- 
sonal;  he  may  have  anticipated  that  it  might  sufier  some  dimi- 
nution during  her  life,  but  whether  he  did  so  anticipate  or 
not,  the  subject  of  the  gift  was  distinctly  defined. 

The  defendants  contend  that  this  case  comes  within  a  class 
of  cases  where  it  has  been  held  that  a  gift  of  all  a  testator's 
personal  estate,  enumerating  the  various  classes,  has  been  held 
to  be  general,  and  not  specific:  Haya  v.  Jackson,  6  Mass.  149; 
Howe  V.  DartTuouth,  1  Ves.  137;  Brummel  v.  Prothero,  3  Id. 
Ill;  Walker's  Estate,^  Rawle,  229;  WoodwoHWs  Estate,  31  Cal. 
595.  But  the  reason  why  it  has  been  thus  held  is  that  in  those 
cases  no  intent  was  shown  to  give  a  distinct  part  of  the  estate, 
nor  to  separate  a  portion  thereof  from  the  residue,  but  rather 
an  intent  to  give  the  whole.  A  bequest  is  not  the  less  specific 
because  it  includes  numerous  articles.  A  bequest  of  all  the 
horses  which  the  testator  may  own,  of  all  his  plate,  of  all  the 
books  in  his  library,  or  of  all  the  horses,  cattle,  and  farming 
4ools  on  a  particular  farm  or  farms,  is  specific:  Stephenson  v. 


Nov.  1887.]  Freeman  v.  Foss.  467 

Dowson,  3  Beav.  342;  Borden  v.  Jenks,  140  Mass.  562;  54  Am. 
Rep.  507. 

In  the  case  at  bar,  the  mill  and  bank  stock  were,  by  the  be- 
quest, separated  and  diBtinguished  from  the  testator's  other 
personal  property. 

Decree  aflSrmed. 


Leoaot  whsn  SPECino,  Aa  Dzsthtguishsd  from  Oenebal:  See  Chcue  v. 
Lockerman,  36  Am.  Deo.  277;  Rosa's  Ex'r  v.  Carpenter,  50  Id.  513;  and  aee 
note  to  Eansbrough's  Ea^ra  v.  ffooe,  37  Id-  667;  Borden  v.  Jenka,  54  Am.  Rep. 
607. 


Freeman  v.  Foss. 

ri45  Massachusetts,  861.] 
SlATUTB  OF  FbAUDS  CANNOT  BB  SeT  VP  TO  DEFEAT  ACTION  UPON  QUANTUM 

Meruit  for  services  rendered  by  the  plaintiff's  minor  son  under  an  ex* 
press  verbal  contract,  by  which  it  was  agreed  that  the  son  should  work 
in  the  defendant's  office  for  two  years,  and  receive  instruction  in  den- 
tistry, and  at  the  end  of  that  time  have  his  tuition  fees  paid  in  a  dental 
college,  but  before  the  expiration  of  that  time  the  son  became  unwilling 
to  remain  longer  under  the  contract,  and  asked  that  a  certain  sum  be 
paid  him  for  his  services  thereafter,  which  was  done. 

Contract  for  services  rendered  by  the  plaintiff 's  minor  son 
from  March  31,  1884,  to  March  18,  1885,  and  from  October  5, 

1885,  to  January  4,  1886.  The  defendant  pleaded  a  general 
denial,  and  set  up  an  express  contract,  which  he  alleged  had 
been  performed.  The  plaintiflF  contended  that  this  express 
contract  was  within  the  statute  of  frauds,  and  could  not  be 
used  in  evidence  to  defeat  the  action.  It  appeared  that  the 
plaintifif  and  defendant  verbally  agreed  that  the  boy  should 
go  to  work  for  two  years  in  the  defendant's  oflBce,  and  receive 
instruction  in  dentistry,  and  at  the  end  of  that  time  the  de- 
fendant should  pay  the  boy's  tuition  in  the  Boston  Dental  Col- 
lege. The  boy  went  to  work  in  the  defendant's  oflBce  on  March 
31,  1884,  and  remained  there  until  March  18,  1885,  when,  by 
reason  of  illness,  he  left,  and  remained  away  until  October  5, 

1886.  He  returned  on  that  day,  and  remained  until  January 
4,  1886,  when  he  expressed  an  unwillingness  and  inability  to 
remain  longer  under  the  contract,  and  requested  that  he  should 
be  paid  three  dollars  a  week  for  his  services  thereafter.  This 
was  verbally  agreed  to,  and  he  continued  for  some  weeks,  re- 
ceiving three  dollars  per  week.  The  court  admitted  the  evi- 
dence, but  ruled  that  the  plaintiff  could  maintain  the  action 


468  Freeman  v.  Foss.  [Mass. 

upon  a  quantum  meruit,  notwithstanding  the  contract,  and  that 
by  reason  of  the  statute  of  frauds,  the  defendant  could  not  set 
up  the  contract  in  defense  of  the  action.  The  defendant  ex- 
cepted, and  asked  the  court  to  rule  that  the  contract  was  exe- 
cuted on  both  sides  up  to  the  time  of  the  new  agreement, 
January  4,  1886,  and  that  an  action  upon  quantum  meruit 
could  not  be  maintained,  when  the  plaintiflf  had  received  from 
the  defendant,  on  January  4,  1886,  all  the  considerations  due 
and  payable  at  the  time  under  the  original  contract  for  services 
theretofore  performed.  The  court  refused  so  to  rule,  and  found 
for  the  plaintifif.    The  defendant  alleged  exceptions. 

C.  P.  Weston,  for  the  plaintiff. 

C  W.  Bartlett,  for  the  defendant. 

By  Court,  Knowlton,  J.  The  defendant  seeks  to  avoid  lia- 
bility for  services  of  the  plaintiff's  son,  by  showing  that  they 
were  rendered  under  an  express  contract,  and  that  he  did  all 
that  he  agreed  to  do  so  long  as  the  boy  remained  in  his  service. 
The  contract  which  he  sets  up  was  within  the  statute  of  frauds; 
it  was  entire  and  indivisible,  and  was  not  fully  performed  by 
either  party.  A  large  part  of  the  consideration  for  the  plain- 
tiff's agreement  was  not  payable  by  the  defendant  until  after 
the  end  of  the  term  of  service,  and  no  part  of  it  was  applica- 
ble to  any  particular  portion  of  the  term.  As  the  plaintiff 
could  not  have  enforced  this  contract  against  the  defendant, 
so  the  defendant  cannot  avail  himself  of  it  to  avoid  liability 
upon  a  quantum  meruit.  This  case  cannot  be  distinguished 
from  King  v.  Welcome^  5  Gray,  41.  See  also  Bemier  v.  Cabot 
Mfg.  Co.,  71  Me.  506;  36  Am.  Rep.  343;  Com>e8  v.  Lamaon,  16 
Conn.  246. 

Exceptions  overruled. 

Recoveby  fob  Services  Bendebsd,  where  Special  Contract  la  not 

Completed:  See  PcUnote  v.  Sanders,  98  Am.  Dec.  664,  and  note  collecting 
prior  cases;  Masseyv.  Taylor,  98  Id.  429;  Derocher  v.  Continental  MilU,  4  Am. 
Rep.  286;  Galvm  v.  Prentice,  6  Id.  58;  Howard  v.  Daly,  19  Id.  285,  289;  Jen- 
nings V.  Lyons,  20  Id.  57;  Leopold  v.  Salkey,  31  Id.  93,  and  note;  Steeples  v. 
Newton,  33  Id.  705;  McMillan  v.  Malloy,  35  Id,  471;  Fildew  v.  Besky,  36  Id. 
133,  and  note;  Bast  v.  Byrne,  37  Id.  841;  Devxy  v.  Alpena  School  District,  38 
[d.  206,  and  note;  PurceU  v.  McComber,  38  Id.  366;  35  Id.  4^6,  note;  Cook  v. 
McCabe,  40  Id.  765;  Riduirda  v.  Eagle  Machine  Worka,  41  Id.  684;  Di^enback 
r.  Stark,  43  Id.  719;  Weis  v.  DevUn,  60  Id.  38. 

Contract  not  to  be  Performed  within  Year,  when  within  Statute 
OF  Frauds:  See  Doyle  v.  Dixon,  93  Am.  Dec.  80,  and  note  discussing  the 
question;  Lawrence  v.  Code,  06  11.  443;  Pitkin  v.  Noyes,  97  Id.  615;  Sheehy 


Nov.  1887.]  CowEN  r.  Sunderland.  469 

7.  Adarene,  98  Id.  623;  6auU  v.  Broum,  2  Am.  Rep.  210;  Jilson  v.  GiV)ert,  7 
Id.  100;  Argus  Co.  v.  Mayor  of  Albany,  14  Id.  296;  Fall  v.  Hazelrigg,  15  Id. 
278;  Kent  v.  Kent,  20  Id.  502;  Dickson  v.  Frisbee,  23  Id.  565;  Towaley  v. 
Moore,  27  Id.  434;  ParJb  V.  Francis  a  AdmW,  28  Id.  517;  SmaUey  v.  Greeiie, 
35  Id.  267;  5crmer  v.  (7a6o<  iCTsr.  Co.,  36  Id.  343;  SutcUffe  v.  Atlantic  Mills, 
43  Id.  39;  (TrottM  v.  Cooi,  45  Id.  462;  McGinnis  v.  Cooi-,  52  Id.  115;  Meyer  v. 
Roberts,  55  Id.  567;  0*nien<  v.  McElrath,  58  Id,  17;  Waskbum  v.  DoscA,  60 
Id.  873. 


Co  WEN    V.    SUNDEELAND. 

[145  MA8SACHCBBTT8,  863.] 

Lessks  Ta£Es  Risk  or  Quality  of  Premises  Hired,  in  the  absence  of  an 
express  or  implied  warranty,  or  of  deceit,  on  the  part  of  the  lessor,  and 
cannot  ordinarily  maintain  an  action  against  the  lessor  for  injuries  sus- 
tained by  reason  of  their  defective  condition;  but  the  lessor  is  liable  if 
the  lessee  is  injured  through  concealed  and  dangerous  defects,  known  to 
the  lessor,  and  which  a  careful  examination  of  the  premises  by  the  lessee 
would  not  discover. 

Evidence  should  be  Submittbd  to  Jury,  to  Determine  whether  Land- 
LORD  Knew  of  Defective  Covering  of  Cesspool,  and  the  danger 
resulting  therefrom,  and  neglected  to  inform  the  tenant  thereof,  and 
whether  the  tenant  had  failed  to  make  a  proper  examination  of  the  prem- 
ises, in  an  action  by  a  tenant  against  her  landlord  for  injuries  sustained 
by  her  from  falling  into  a  cesspool  in  the  yard  of  the  premises,  where  it 
appeared  that  the  cesspool  was  never  pointed  out  to  the  tenant,  and  that 
she  did  not  know  of  its  existence,  that  it  was  covered  by  rotten  boards, 
concealed  liy  earth,  upon  which  grass  and  weeds  were  growing,  and  that 
the  landlord  had  directed  the  cover  to  be  repaired  with  old  boards  some 
time  before,  and  was  present  when  the  repairs  were  made. 

Tort  for  personal  injuries  sustained  by  the  plaintiff  from 
falling  into  a  cesspool  upon  premises  owned  by  the  defendant, 
and  occupied  by  the  plaintiff  as  a  tenant  at  will.  The  court 
ruled  that  there  was  no  evidence  to  authorize  a  verdict  for  the 
plaintiff,  and  directed  a  verdict  for  the  defendant.  The  evi- 
dence is  set  forth  in  the  opinion.  It  was  agreed  that  if  the 
ruling  was  erroneous,  the  verdict  should  be  set  aside;  but  oth- 
erwise judgment  was  to  be  entered  on  the  verdict. 

J.  E.  Cotter  and  C.  F.  Jenney,  for  the  plaintiff. 

C.  P.  Gorely  and  A.  L.  Bartlett,  for  the  defendant. 

By  Court,  Devens,  J.  It  is  a  general  rule,  well  established 
by  the  decisions  of  this  court,  that  the  lessee  takes  an  estate 
in  the  premises  hired,  and  takes  the  risk  of  the  quality  of  the 
premises,  in  the  absence  of  an  express  or  implied  warranty  by 
the  lessor,  or  of  deceit.     If,  therefore,  he  is  injured  by  reason 


470  CowEN  V.  Sunderland.  [Mass. 

of  the  unsafe  condition  of  the  premises  hired,  he  cannot  ordi- 
narily maintain  an  action,  in  the  absence  of  such  warranty  or 
of  misrepresentation.  The  rule  of  caveat  emptor  applies,  and 
it  is  for  the  lessee  to  make  the  examination  necessary  to  deter- 
mine whether  the  premises  he  hires  are  safe,  and  adapted  to 
the  purposes  for  which  they  are  hired. 

There  is  an  exception  to  this  general  rule,  arising  from  the 
duty  which  the  lessor  owes  the  lessee.  This  duty  does  not 
spring  directly  from  the  contract,  but  from  the  relation  of  the 
parties,  and  is  imposed  by  law.  When  there  are  concealed 
defects,  attended  with  danger  to  an  occupant,  and  which  a 
careful  examination  would  not  discover,  known  to  the  lessor, 
the  latter  is  bound  to  reveal  them,  in  order  that  the  lessee  may 
guard  against  them.  While  the  failure  to  reveal  such  facts 
may  not  be  actual  fraud  or  misrepresentation,  it  is  such  negli- 
gence as  may  lay  the  foundation  of  an  action  against  the  les- 
sor, if  injury  occurs.  The  principle  that  one  who  delivers  an 
article  which  he  knows  to  be  dangerous  to  another  ignorant 
of  its  qualities,  without  notice  of  its  nature  or  qualities,  is 
liable  for  any  injury  reasonably  likely  to  result,  and  which 
does  result,  has  been  applied  to  the  letting  of  tenements.  It 
has  thus  been  held  that  where  one  let  premises  infected  with 
the  small-pox,  and  injury  occurred  thereby,  he  was  liable,  if, 
knowing  this  danger,  he  omitted  to  inform  the  lessee:  Minor 
v.  Sharon,  112  Mass.  477;  17  Am.  Rep.  122.  This  case  pro- 
ceeded upon  the  ground  of  the  lessor's  negligent  failure  to  per- 
form a  duty  which  he  owed  the  lessee;  and  it  was  not  deemed 
important  whether  the  omission  to  give  the  information  was 
intentional  or  otherwise:  See  also  Bowe  v.  Hunking,  135  Mass. 
380;  46  Am.  Rep.  471,  and  cases  cited;  Tuttle  v.  Gilbert  Mfg. 
Co.,  145  Mass.  169. 

Obviously,  there  may  be  many  concealed  defects  and  dangers 
about  a  house  which  careful  examination  will  not  discover. 
If  these  are  known  to  the  lessor,  it  is  for  him  to  reveal  them. 
Traps  or  contrivances  may  exist,  by  means  of  which  the  most 
careful  occupant  might  be  injured.  "  Such  traps  or  contriv- 
ances," says  Mr.  Justice  Field,  "are  not  merely  a  want  of 
repair;  they  are,  in  a  sense,  active  agencies  of  mischief,  which 
no  tenant  would  expect  to  find  in  even  a  decayed  and  ruinous 
tenement":  Bowe  y.  Hunking,  supra. 

In  Reichenhacher  v.  Pahmeyer,  8  111.  App.  217,  the  defect 
alleged  was  in  the  manner  of  hanging  a  chandelier.  The 
chandelier  was  hung  unsafely,  and  the  lessor  knew  it,  and  did 


Nov.  1887.]  CowEN  V.  Sunderland.  471 

not  disclose  this  fact  to  the  lessee.  It  was  not  apparent  to  an 
observer.  It  was  held  that  the  lessor  was  liable  to  a  servant 
of  the  lessee  who  was  injured  by  its  fall:  See  also  Scott  v. 
Simons,  54  N.  H.  426;  Godley  v.  Hagerty,  20  Pa.  St.  387;  59 
Am.  Dec.  731. 

In  Bowe  v.  Hunking,  supra,  it  was  held  that  the  case  then 
at  bar  was  not  within  the  exception  to  the  general  rule,  by 
which  a  lessor  is  rendered  liable  for  negligence  of  this  char- 
acter. There  was  no  evidence  that  the  defective  step  by 
which  the  injury  in  that  case  occurred  was  known  to  the 
lessor,  or  her  agent,  to  be  unsafe;  and  further,  this  defect  it- 
self was  obvious,  and  whatever  danger  existed  was  readily 
seen  by  examination. 

In  the  case  at  bar,  as  the  plaintiff  presented  it,  there  was 
evidence  that  she  did  not  know  of  the  existence  or  location  of 
the  cesspool;  that  it  was  in  the  yard  she  had  hired  and  was 
entitled  to  use;  that  it  was  covered  with  from  four  to  six 
inches  of  earth,  on  which  grass  and  weeds  were  growing;  that 
it  presented  the  same  appearance  as  the  rest  of  the  yard;  that 
it  had  never  been  pointed  out  to  her;  that  it  was  where  she 
passed  over  it  in  her  use  of  the  yard;  that  the  boards  which 
covered  it,  and  on  which  the  earth  rested,  were  rotten  and 
decayed;  and  that,  in  stepping  upon  this  covering  of  the  cess- 
pool, she  sank  into  it,  and  was  injured.  There  was  further 
evidence  that  this  cover  had  been  repaired  with  old  boards 
Bome  time  before,  by  the  defendant's  direction,  and  that  the 
defendant  was  present  when  this  was  done.  From  the  testi- 
mony of  the  witnesses  of  these  repairs,  the  jury  might  fairly 
have  inferred  that  it  was  left  in  an  unsafe  state,  and  known 
to  be  so. 

Upon  these  facts,  the  learned  judge  erred  in  withdrawing 
the  case  from  the  jury.  It  should  have  been  submitted,  with 
proper  instructions,  to  determine  whether  the  defendant  knew 
the  defective  covering  of  the  cesspool,  and  the  danger  there- 
from, and  had  negligently  omitted  to  inform  the  plaintiff, 
and  whether  the  plaintiff  herself,  making  careful  examination, 
had  been  injured  thereby  by  reason  of  a  want  of  proper  in- 
formation. 

Verdict  set  aside.  

Landlord's  Liabilitt  to  Tenant  tor  Dkfkotivb  Condition  or  Cox* 
BTROcnoN  OF  PREMISES:  See  note  to  Polack  v.  PiocJie,  95  Am.  Dec.  118; 
Doupe  T.  Otnin,  0  Am.  Rep.  47;  Oill  v.  Middltton,  7  Id.  548;  Marshall  v. 
Colien,  9  I«l.  170;  Jqfev.  Harieau,  15  Id.  438;  Miiun-v.  Sharon,  17  Id.  12^ 


472  GiKOUX  V.  Stedman.  [Mass. 

and  note;  Cesar  v.  Kamtz,  19  Id.  164;  Glklcaufy.  Maurer,  20  Id.  238;  Tooh 
V.  Beckett,  24  Id.  54;  McAlpin  v.  Powell,  26  Id.  555;  Looney  v.  McLean,  37 
Id.  295;  Jones  v,  Freidenburg,  42  Id.  86,  and  note;  Krueger  v.  Ferrant,  43  Id. 
223;  McCarthy  V.  York  County  Savings  Bank,  43  Id.  591;  Purcell  v.  English, 

44  Id.  255;  Coitc  v.  Gutkase,  44  Id.  499;  Woods  v.  Naumieag  Steam  Cotton  Co., 

45  Id.  344;  5owc  v.  JTunking,  46  Id.  471,  and  note;  Pike  v.  Brittan,  60  Id. 
627;  i)onaW»on  v.  Wilson,  post,  p.  487. 


GiRoux  V.  Stedman. 

[145  Massachusetts,  439.1 
Wareantt  that  Hoos  aeb  Fit  foe  Food  is  not  Implied,  where  farm- 
ers who  are  not  dealers  in  provisions  kill  hogs  and  sell  them,  knowing 
that  the  purchasers  intend  them  for  domestic  use. 

Actions  of  tort,  brought  by  Richard  Giroux,  Mary  Giroux, 
Joseph  Pecord,  and  Mary  Giroux,  against  Phineas  Stedman 
and  another.  The  declarations  alleged  that  the  defendants 
sold  the  plaintiffs  certain  meat  for  domestic  use,  which  was 
unwholesome,  corrupted,  and  unfit  to  be  used  as  food,  of  which 
the  defendants  well  knew,  but  of  which  they  negligently  and 
wrongfully  failed  and  neglected  to  give  the  plaintiffs  notice  or 
information,  and  that  the  plaintiffs  ate  the  meat  and  were 
made  sick  thereby.  It  appeared  that  the  defendants  were  farm- 
ers, jointly  interested  in  raising  hogs.  About  the  middle  of 
September,  1885,  the  defendants  found  that  an  infectious  dis- 
ease, known  as  the  hog  cholera,  existed  upon  their  farm,  and 
that  their  entire  herd  had  been  exposed  to  the  disease.  On 
October  3d  and  October  5th  following,  they  killed  some  of  the 
hogs,  dressed  them,  and  sold  them  to  the  plaintiffs.  They 
knew  that  the  meat  was  for  the  plaintiffs'  domestic  use,  but 
they  made  no  representations  as  to  the  quality,  nor  did  they 
give  any  notice  to  the  plaintiffs  of  the  existence  of  the  disease 
among  their  herd.  There  was  evidence  tending  to  show  that, 
although  the  defendants'  whole  herd  had  been  exposed  to  the 
disease,  a  portion  of  it  only  had  been  affected;  and  that  even 
if  affected,  the  meat  of  the  animals  was  not  necessarily  un- 
wholesome. There  was  no  evidence  that  the  animals  whose 
meat  was  sold  had  ever,  so  far  as  the  defendants  knew,  actu- 
ally had  the  disease.  The  court  instructed  the  jury  as  ap- 
pears in  the  opinion.  The  jury  returned  a  verdict  for  the  de- 
fendants, and  the  plaintiffs  alleged  exceptions. 

W.  W.  McClench,  for  the  plaintiffs. 

E.  W.  Chapiuy  for  the  defendants. 


Jan.  1888.]  Giroux  v.  Stedman.  473 

By  Court,  Devens,  J.  It  was  known  to  the  defendants  that 
the  plaintifiFs  purchased  the  meat  to  be  used  as  provisions,  but 
it  was  held  by  the  presiding  judge  that,  in  order  that  they 
should  recover,  they  must  prove  the  allegations  in  their  dec- 
larations, that  the  defendants  knew  that  the  meat  sold  by 
them  was  unwholesome,  and  improper  to  be  used  as  pro^ 
visions.  He  instructed  the  jury  that,  at  common  law,  the 
general  rule  is,  that  where  personal  property  is  sold  in  the 
presence  of  buyer  and  seller,  each  having  an  opportunity  to 
see  the  property,  and  there  is  nothing  said  as  to  the  quality, 
the  only  implied  warranty  on  the  part  of  the  seller  is  that  he 
has  a  valid  title  in,  or  has  a  right  to  sell,  the  chattel.  He 
added  that  there  is  an  exception  to  this  general  rule  where 
a  provision  dealer  or  market-man  sells  provisions,  as  meat  and 
vegetables,  to  his  customers  for  use,  and  that  in  such  case 
there  would  be  an  implied  warranty  that  they  were  fit  for  use 
and  wholesome. 

Whether  this  exception  exists  or  not,  it  is  not  important  in 
the  case  at  bar  to  inquire,  as  it  cannot  be,  and  was  not,  con- 
tended that  the  defendants  were  brought  within  it.  The 
contention  of  the  plaintififs  is,  that  even  if  the  rule  is  well 
established  that,  where  there  is  no  express  warranty  and  no 
fraud,  no  warranty  of  the  quality  of  the  thing  sold  is  implied 
by  law,  and  that  the  maxim  of  caveat  emptor  applies,  there  is 
a  more  general  exception  which  excludes  from  its  operation 
all  sales  of  provisions  for  immediate  domestic  use,  no  matter 
by  whom  made. 

That  in  a  sale  of  an  animal  by  one  dealer  to  another,  even 
with  the  knowledge  that  the  latter  dealer  intends  to  convert 
it  into  meat  for  domestic  use,  or  that  in  the  sale  of  provisions 
in  the  course  of  commercial  transactions  there  is  no  implied 
warranty  of  the  quality,  appears  to  be  well  settled:  Howard 
V.  Emerson^  110  Mass.  320;  14  Am.  Rep.  608,  and  cases  cited; 
Burnhy  v.  Bolleii,  16  Mees.  &  W.  644.  While  occasional  ex- 
pressions may  be  found,  as  in  Van  Bracklin  v.  Fonda,  12 
Johns.  468,  7  Am.  Dec.  339,  which  sustain  the  plaintififs'  con- 
tention, we  have  found  but  one  decided  case  which  supports 
it.  In  Van  Bracklin  v.  Fonda,  supra,  it  is  said  that  in  a  sale 
of  provisions  the  vendor  is  bound  to  know  that  they  are  sound, 
at  his  peril,  but  the  case  shows  that  the  defendant,  who  had 
sold  beef  for  domestic  use,  knew  the  animal  from  which  it 
came  to  be  diseased.  This  had  been  found  by  the  jury,  and 
the  remark  is  made  in  connection  with  the  facts  proved. 


474  GiRoux  V.  Stedman.  [Maes. 

The  case  of  Hoover  v.  Peters,  18  Mich.  51,  does  sustain  the 
plaintiflfs'  contention,  as  it  is  there  held  that,  where  articles  of 
food  are  bought  for  domestic  consumption,  and  the  vendor 
sells  them  for  that  express  purpose,  the  law  implies  a  war- 
ranty that  they  are  fit  for  such  purpose,  whether  the  sale  be 
made  by  a  retail  dealer  or  by  any  other  person.  This  case 
imposes  a  heavier  liability  on  a  person  not  engaged  in  the 
sale  of  provisions  as  a  business  than  he  should  be  called  on 
to  bear.  The  opinion  is  not  supported  by  any  citation  of  au- 
thorities. In  a  dissenting  opinion  by  Mr.  Justice  Christiancy, 
it  is  said:  "  Had  it  appeared  that  he  [the  defendant]  was  the 
keeper  of  a  meat-market  or  butcher's  shop,  and  was  engaged 
in  the  business  of  selling  meat  for  food,  and  therefore  bound 
or  presumed  to  know  whether  it  was  fit  for  that  purpose,  I 
should  have  concurred  in  the  opinion  my  brethren  have  ex- 
pressed." If  there  is  an  exception  to  the  rule  of  caveat  emp- 
tor which  grows  out  of  the  circumstances  of  the  case  and  the 
relations  of  buyer  and  seller,  where  the  latter  is  a  general 
dealer  and  the  former  a  purchaser  for  immediate  use,  there 
appears  no  reason  why  it  should  be  further  extended. 

In  the  case  at  bar,  the  defendants  were  not  common  dealers 
in  provisions,  or  market-men.  They  were  farmers  selling  a 
portion  of  the  produce  of  their  farms.  No  representations  of 
the  quality  of  the  meat  sold  was  made  by  them.  In  making 
casual  sales  from  a  farm  of  its  products,  to  hold  the  owner  to 
the  duty  of  ascertaining  at  his  peril  the  condition  of  the 
articles  sold,  and  of  impliedly  warranting,  if  sold  with  the 
knowledge  that  they  are  to  be  used  as  food,  that  they  are  fit 
for  the  purpose,  imposes  a  larger  liability  than  should  be 
placed  upon  one  who  may  often  have  no  better  means  of 
knowledge  than  the  purchaser. 

The  plaintififs  contend  that  the  case  of  French  v.  Vining,  102 
Mass.  132,  3  Am.  Rep.  440,  is  decisive  in  their  favor,  but  it 
appears  to  us  otherwise.  In  that  case  the  defendant  sold  hay, 
which  he  knew  had  been  poisoned,  for  the  purpose  of  being 
fed  to  a  cow,  although  he  had  carefully  endeavored  to  sepa- 
rate the  damaged  portion  from  the  rest,  and  supposed  he  had 
succeeded.  From  the  efi*ects  of  eating  the  hay  the  cow  died, 
and  the  defendant  was  held  liable.  His  knowledge  of  the  in- 
jury to  the  hay  was  certain  and  positive;  his  belief  that  he 
had  remedied  the  diflSculty  was  conjectural  and  uncertain, 
and  proved  to  be  wholly  erroneous. 

In  the  case  at  bar,  while  the  defendant's  herd  had  been 


Jan.  1888.J  Hale  v.  Spauldinq.  475 

exposed  to  hog  cholera,  there  was  evidence  that  a  portion  of  it 
only  had  been  affected,  and  further,  that  even  if  affected,  the 
meat  of  the  animals  was  not  necessarily  unwholesome.  There 
was  no  evidence  that  the  animals  whose  meat  was  sold  had 
ever,  so  far  as  the  defendants  knew,  actually  had  the  disease; 
and  the  verdict  of  the.  jury  has  established  that  they  were 
ignorant  that  the  meat  sold  by  them  was  unwholesome. 

In  French  v.  Vining,  supra,  the  defendant  knew  what  the 
condition  of  the  hay  had  been,  and  this  is  a  vital  part  of  the 
case.  He  sold  an  article  which  he  knew  had  been  poisoned, 
and  from  which  he  had  taken  no  effectual  means  to  remove 
the  poison.  His  belief  or  supposition  that  his  effort  had  been 
successful  could  not  relieve  him  from  liability  for  the  conse- 
quences that  ensued  because  it  had  been  unsuccessful,  if  he 
sold  the  hay  without  informing  the  purchaser  of  the  danger- 
ous injury  which  it  had  received. 

Exceptions  overruled. 

Wakranty  that  Abtiolb  is  Frr  tob  Food  is  Imfusd  in  sales  by 
dealers  and  common  traders  for  direct  consnmption:  Note  to  Hunter  v.  Slate, 
73  Am.  Dec.  167,  where  the  question  is  considered;  Sinclair  v.  Hathaway,  58 
Am.  Rep.  327;  and  see  Jonea  v.  George,  42  Id.  689;  but  upon  the  sale  of  a  live 
cow  by  a  farmer  to  retail  batchers,  there  is  no  implied  warranty  that  she  ia 
fit  for  food,  although  he  knows  that  they  bny  her  for  the  purpose  of  cutting 
her  up  into  beef  for  immediate  use:  Howard  v.  Emeraon,  14  Id.  608. 


Hale  v,  Spaulding. 

[146  Uassachusstts,  482.] 
RxoBiPT  unsBB  Skal,  Givsn  by  Oblioek  to  Joint  Obuoob  "in  full  satis* 
faction  for  his  liability  "  upon  the  obligation,  releases  the  co-obligors,  if 
the  receipt  itself  does  not  show  a  contrary  intentioH. 

Contract  by  William  Hale  against  L.  V.  Spaulding,  H.  M. 
Chase,  A.  H.  Saltmarsh,  Richard  Webster,  George  A.  Hall, 
and  Cyrus  D.  Furbur,  upon  a  sealed  instrument,  by  which 
the  defendants  agreed  to  pay  to  the  plaintiff,  on  demand,  six 
sevenths  of  all  loss  to  which  he  might  be  subjected  as  indorser 
of  a  certain  note.  Saltmarsh  alone  defended,  and  set  up  that 
Bince  the  execution  of  the  contract  the  plaintiff  had  executed 
and  delivered  to  the  defendant  Spaulding  the  following  in- 
strument under  seal:  "  Received  of  L.  V.  Spaulding  $1,060.84 
in  full  satisfaction  for  his  liability  on  the  document  signed 
by  L.  V.  Spaulding,  H.  M.  Chase,  A.  H.  Saltmarsh,  Richard 


476  Hale  v.  Spaulding.  [Mass. 

Webster,  George  A.  Hall,  William  Hale,  and  Cyrus  D.  Furbur, 
dated  May  23,  1885."  The  plaintiflf  offered  to  show  that  in 
giving  the  receipt  there  was  no  intention  of  releasing  Salt- 
marsh,  but  the  court  ruled  that  the  offer  was  not  material,  and 
that  the  receipt  released  Saltmarsh,  and  ordered  a  verdict  for 
the  defendant.     The  plaintiff  alleged  exceptions. 

W.  H.  Moody,  for  the  plaintiff. 

H.  N.  Merrill,  for  the  defendant. 

By  Court,  C.  Allen,  J.  The  words  "  in  full  satisfaction  for 
his  liability"  import  a  release  and  discharge  to  Spaulding, 
and  the  instrument  being  under  seal,  it  amounts  to  a  tech- 
nical release.  The  plaintiff  does  not  controvert  the  general 
rule  that  a  release  to  one  joint  obligor  releases  all:  Wiggin  v. 
Tudor,  23  Pick.  434,  444;  Goodnow  v.  Smith,  18  Id.  414;  29 
Am.  Dec.  600;  Pond  v.  Williams,  1  Gray,  630,  636.  But  this 
result  is  avoided  when  the  instrument  is  so  drawn  as  to  show 
a  contrary  intention:  1  Lindleyon  Partnership,  433;  2  Chitty 
on  Contracts,  11th  Am.  ed.,  1154  et  seq.;  Ex  parte  Good,  L.  R. 
6  Ch.  D.  46,  55.  The  diflQculty  with  the  plaintiff's  case  is,  that 
there  is  nothing  in  the  instrument  before  us  to  show  such  con- 
trary intention.  Usually  a  reservation  of  rights  against  other 
parties  is  inserted  for  that  purpose;  or  the  instrument  is  put 
in  the  form  of  a  covenant  not  to  sue:  See  Kenworthy  v.  Saw- 
yer, 125  Mass.  28;  Willis  v.  De  Castro,  4  Com.  B.,  N.  S.,  216; 
North  V.  Wakefield,  13  Q.  B.  536,  541.  Parol  evidence  to 
ehow  the  actual  intention  is  incompetent:  Tucherman  v.  New- 
hall,  17  Mass.  580,  585.  The  instrument  given  in  this  case 
was  a  mere  receipt  under  seal  of  money  from  one  of  several 
joint  obligors,  in  full  satisfaction  for  his  liability  on  the  docu- 
ment signed  by  himself  and  others.  There  is  nothing  to  get 
hold  of  to  show  an  intent  to  reserve  rights  against  the  others. 
He  might  already  have  discharged  each  of  them  by  a  similar 
release. 

Exceptions  overruled. 

Release  of  One  Jodtt  Debtor  Releases  All,  auless  the  instrument  shows 
a  contrary  intention:  Totes  v.  Donaldson,  61  Am.  Dec.  283,  and  note  collect- 
ing other  cases;  but  a  covenant  not  to  sue  one  of  several  joint  debtors  does 
oot  discharge  the  debt  as  to  the  others:  Brovm  v.  White,  80  Id.  226. 


Jan.  1888.]  Wilson  v.  Wilson.  477 

Wilson  v.  Wilson. 

L145  Massachvsbtts,  490.J 
TsusTEK,  Who  is  Beneficiary's  Son,  may  be  Removed,  on  application  of 
beneficiary,  because  a  state  of  mutual  hostility  has  arisen  between 
them  since  the  creation  of  the  trust,  attributable  in  part  to  the  fault  of 
the  trustee,  and  which  would  naturally  pervert  the  feelings  and  judg- 
ment of  the  trustee,  who  is  given  full  power  to  determine  what  allow- 
ance the  beneficiary  shall  have,  limited  only  by  the  duty  of  exercising  a 
fair  and  reasonable  discretion,  although  there  is  no  distinct  proof  of  mis- 
conduct in  consequence  of  such  hostility. 

Appeal  from  a  decree  of  the  probate  court  removing  James 
H.  Wilson,  one  of  the  trustees  under  the  will  of  Deborah  Wil- 
son, upon  the  petition  of  Job  T.  Wilson,  a  beneficiary.  The 
case  was  reserved  for  the  consideration  of  the  whole  court. 
The  facts  are  stated  in  the  opinion. 

/.  M.  Wood,  for  the  petitioner. 

/.  M.  Morton,  for  the  respondent. 

By  Court,  Morton,  C.  J.  The  will  of  the  testatrix,  who  was 
the  wife  of  the  petitioner,  gives  the  most  of  her  estate  to  the 
respondent  and  two  others,  upon  the  trust  that  they  "  may,  in 
the  exercise  of  their  discretion,  pay  "  to  the  petitioner  such 
portion  of  the  income,  "  or  no  portion  at  all  thereof,  as  they 
shall  from  time  to  time  think  fitting  and  proper,"  shall  invest 
the  surplus  income  for  accumulation,  and  at  the  death  of  the- 
petitioner  shall  convey  one  half  of  the  trust  estate  to  her 
daughter  or  her  issue,  or  if  she  leaves  no  issue,  to  the  issue  of 
the  respondent,  and  shall  hold  the  other  half  in  trust  until 
the  death  of  the  respondent,  when  it  shall  be  conveyed  to  his 
issue.  It  also  provides  in  the  last  clause  that  "  if  either  of 
the  recipients  under  this  will,  husband,  children,  or  grand- 
children, or  children's  issue,  shall  be  wanting  in  thrift,"  the 
trustees  are  ordered  and  charged  with  making  the  convey- 
ances and  payments  before  provided  in  such  way  and  to  such 
persons  as  shall  be  most  likely  to  inure  to  the  benefit  of  the 
recipients,  "  exercising  in  all  such  case  and  cases  the  judgment 
that  would  be  expected  from  a  good  father  to  each  of  such 
recipients  respectively." 

The  will  contemplates  that  a  part  of  the  income  is  to  be  ap- 
plied to  the  benefit  of  the  petitioner,  unless  some  cause  exists 
to  the  contrary.  Although  the  discretion  given  to  the  trustees 
is  very  broad,  yet  they  are  to  act  upon  their  discretion  and 
judgment,  not  upon  their  mere  will  or  caprice,  or  from  selfish 


478  Wilson  v.  Wilson.  [Mass. 

or  improper  motives;  they  are  to  exercise  the  judgment  to  be 
expected  from  a  good  father. 

The  petitioner  has  a  right  to  demand  of  them  that,  in  deter-  i 
mining  how  much  of  the  income  should  be  paid  to  him  or  for  | 
his  benefit,  they  should  exercise  a  fair  and  reasonable  discre- 
tion and  judgment;  and  if  they  unfairly  or  corruptly  refuse 
to  do  this,  he  is  a  party  "  beneficially  interested  in  the  trust," 
who,  under  the  statute,  may  apply  for  the  removal  of  the  trus- 
tees: Pub.  Stats.,  c.  141,  sec.  9. 

We  come,  then,  to  the  merits  of  the  case. 

The  statute  provides  that  the  supreme  judicial  court  and 
the  probate  courts  may,  "  upon  application  of  the  parties  ben- 
eficially interested  in  the  trust,  remove  a  trustee  under  a 
written  instrument,  if  such  removal  appears  essential  to  the 
interests  of  the  applicants":  Pub.  Stats.,  c.  141,  sec.  9.  This 
gives  a  broad  power  to  the  court,  and  leaves  the  question  of 
the  removal  of  a  trustee  very  largely  to  its  discretion. 

In  this  case,  the  justice  who  heard  the  case  upon  appeal 
from  the  probate  court  has  not  reported  the  evidence;  we  can- 
not therefore  revise  his  findings.  He  has  found,  as  the  result 
of  the  hearing,  that  the  respondent  is  the  dominant  member 
of  the  board  of  trustees  appointed  by  the  will,  that  there 
exists  a  strong  mutual  hostility  between  the  respondent  and 
the  petitioner,  who  is  his  father,  that  he  cannot  satisfactorily 
apportion  the  blame  for  the  existing  quarrel,  and  that  he  does 
not  find  any  misconduct  of  the  trustee  distinctly  attributable 
to  hostility.  But  he  finds  that  "  in  view  of  the  absolute  dis- 
cretion reposed  in  the  trustees  as  to  the  allowance  to  the  peti- 
tioner, and  the  whole  state  of  afiairs  disclosed  by  the  evidence, 
the  trustee  ought  to  be  removed,  if  the  petitioner  has  a  locus 
standi,  and  unless  mutual  hostility  not  attributable  solely  to 
the  trustee,  without  distinct  proof  of  misconduct  in  conse- 
quence of  it,  is  never  a  suflicient  ground  of  removal  in  a  case 
like  the  present."  This  is  equivalent  to  a  finding  by  the  jus- 
tice that  the  respondent  ought  to  be  removed,  unless,  upon  the 
facts  in  the  case,  the  justice  had  no  right  in  law  to  remove  him. 

We  think  it  was  within  the  province  of  the  presiding  justice 
to  decide  whether,  upon  all  the  evidence,  the  trustee  should  be 
removed.  The  relation  between  the  father  and  the  son  cre- 
ated by  the  will  is  one  of  extreme  delicacy.  The  trustees 
have  full  power  to  determine  what  allowance  the  father  shall 
have,  limited  only  by  the  duty  of  exercising  a  fair  and  reason- 
able discretion.  Every  one  instinctively  feels  that  a  state  of 
mutual  hostility  between  the  trustee  and  such  a  beneficiary, 


Jan.  1888.]  Wilson  v.  Wilson.  479 

arising  after  the  trust  was  created,  caused  in  part  by  the  fault 
of  the  trustee,  unfits  him,  to  a  greater  or  less  degree,  for  the 
fair  execution  of  the  trust.  But  from  the  nature  of  the  case, 
it  would  be  very  diflScult,  if  not  impossible,  to  find  distinct 
proof  that,  in  exercising  his  discretion,  the  trustee  was  actu- 
ated or  influenced  by  such  hostility.  And  yet  it  may  be 
apparent  that  according  to  the  laws  which  generally  govern 
human  action,  he  could  not  be  relied  upon  to  act  fairly  towards 
the  beneficiary.  We  think  that,  in  a  case  like  this,  where  the 
duty  of  a  trustee  is  so  delicate,  where  the  hostility  has  arisen 
since  the  trust  was  created,  and  is  attributable  in  part  to  the 
fault  of  the  trustee,  where  the  existence  of  the  hostility  would 
naturally  pervert  his  feelings  and  judgment,  it  is  competent 
for  a  justice  to  remove  a  trustee  without  further  proof  of  mis- 
conduct, upon  the  ground  that  the  removal  appears  essential 
to  the  interests  of  the  beneficiary. 

In  McPherson  v.  Cox,  96  U.  S.  404,  419,  Mr.  Justice  Miller 
states  that  "  where  a  trustee  is  charged  with  an  active  trust, 
which  gives  him  some  discretionary  power  over  the  rights  of 
the  cestui  que  trust,  and  which  brings  him  into  constant  per- 
sonal intercourse  with  the  latter,  it  may  be  conceded  that  the 
mere  existence  of  strong  mutual  ill  feeling  between  the  parties 
will,  under  some  circumstances,  justify  a  change  by  the  court." 
In  Scott  V.  Rand,  118  Mass.  215,  it  is  said  in  the  opinion  that 
the  question  of  removing  a  trustee  depends  upon  "  a  careful 
consideration  of  all  the  circumstances,  the  existing  relations, 
and  to  some  extent  the  state  of  feeling  between  the  parties.  It 
is  addressed  to  the  reasonable  discretion  of  the  court."  And 
the  trustee  was  removed,  although  he  had  acted  from  honest 
motives,  mainly  upon  the  ground  that,  in  a  quarrel  between 
the  cestui  que  trust  and  her  husband,  he  had  taken  the  part  of 
the  husband,  and  thus  created  unfriendly  relations  with  her. 

The  respondent  relies  upon  the  cases  of  Forster  v.  Davies,  4 
De  Gex.  F.  &  J.  133,  and  Nickels  v.  Philips,  18  Fla.  732.  But 
they  are  quite  difierent  from  the  case  at  bar.  It  does  not  ap- 
pear in  those  cases  that  any  blame  attached  to  the  trustees  for 
the  existing  feud  or  hostility;  and  the  trustees  had  no  discre- 
tionary power  over  the  rights  of  the  cestui  que  trust,  so  that 
the  existence  of  hostility  was  of  minor  importance,  as  it  could 
not  affect  the  due  execution  of  the  trust. 

Decree  of  probate  court  affirmed. 

Power  or  Court  to  Remove  Trustee:  Sm  OwphUl  ▼.  libell,  19  A"»  Dea 
076;  MeUtodiU  Church  v.  Beminyton,  26  Id.  61. 


480  Simpson  v.  Story.  [Masi. 

Simpson  v.  Story. 

fl45  &LL88ACHU8KTT8,  497.J 

Liability  of  Owkers  of  FisHiNa  Vessels  is  not  Controlled  and  Lim- 
ited by  the  provisions  of  the  United  States  Statutes  of  1884,  chapter  121, 
section  18,  which  enacts  that  "the  individual  liability  of  a  ship-owner 
shall  be  limited  to  the  proportion  of  any  or  all  debts  and  liabilities  that 
his  individuEil  share  of  the  vessel  bears  to  the  whole. " 

Contract  by  Joseph  Simpson  against  Arthur  D.  Story  and 
Eli  Wilson  to  recover  for  repairs  done  and  supplies  furnished 
the  fishing  schooner  A.  M.  Burnham,  owned  by  the  defendants 
in  equal  parts.  Story,  who  alone  defended,  claimed  that  if  he 
was  liable  at  all,  he  was  liable  for  but  half  of  the  debt,  under 
the  United  States  Statutes  of  June  26,  1884,  chapter  121,  sec- 
tion 18,  which  provides:  "  The  individual  liability  of  a  ship- 
owner shall  be  limited  to  the  proportion  of  any  or  all  debts 
and  liabilities  that  his  individual  share  of  the  vessel  bears  to 
the  whole";  and  requested  the  court  to  so  instruct  the  jury. 
The  court  refused  to  give  such  instruction,  but  charged  that  if 
Story  authorized  or  ratified  the  purchase  in  question,  he  was 
liable  for  the  full  amount  of  the  plaintifi''s  bill.  The  plaintiff 
had  a  verdict  accordingly,  and  the  defendant  alleged  exceptions. 

W.  A.  PeWy  Jr.,  for  the  plaintifiP. 
C.  A.  Russellj  for  the  defendant. 

By  Court,  C.  Allen,  J.  In  construing  an  act  of  Congress, 
the  title  of  the  act,  the  objects  to  be  accomplished,  the  other 
provisions  found  in  connection  with  those  under  especial  con- 
sideration, the  provisions  and  arrangement  of  the  statutes 
which  were  amended,  the  mode  in  which  the  embarrassing 
words  were  introduced  as  shown  by  the  journals  and  records, 
the  history  of  the  times,  and  especially  of  prior  legislation  upon 
the  same  general  subject,  may  all  be  considered:  Myer  v. 
Car  Co.,  102  U.  S.  1, 11;  United  States  v.  Union  Pacific  R.  R.y 
91  Id.  72,  79,  82;  Hadden  v.  The  Collector,  5  Wall.  107,  110; 
Blake  v.  National  Banks,  23  Id.  307, 319;  see  also  Field  v.  Good- 
ing,  106  Mass.  310,  313;  Commonwealth  v.  Bank  of  Mutual  Re- 
demption, 4  Allen,  1,  13;  Holbrook  v.  Holbrook,  1  Pick.  248. 
Looking  at  the  statute  now  under  consideration  (United 
States  Statutes  of  June  26,  1884,  c.  121,  sec.  18)  in  this  man- 
ner, it  appears  that  it  was  not  the  design  of  Congress  to  include 
fishing  vessels  within  its  provisions.  Its  title  is,  "An  act  to 
remove  certain  burdens  on  the  American  merchant  marine, 


Jan.  1888.]  Simpson  v.  Story.  48! 

and  encourage  the  American  foreign  carrj^ng  trade,  and  for 
other  purposes."  The  object  of  the  prior  legislation  which  was 
amended,  as  well  as  of  the  act  in  question,  was  to  promote  the- 
building  of  ships,  and  to  encourage  persons  engaged  in  tha. 
business  of  navigation,  with  special  reference  to  the  foreign- 
carrying  trade;  so  that  American  vessels  might  enter  into  this 
trade  in  competition  with  foreign  vessels,  and  on  more  nearly 
the  same  terms:  See  Moore  v.  American  Transportation  Co.,  24 
How.  1;  Walker  v.  Transportation  Co.,  3  Wall.  150.  This  is 
shown  by  the  whole  history  of  the  legislation,  and  by  the 
course  of  the  discussions  in  Congress:  See  Congressional  Rec- 
ord, 48th  Congress. 

American  vessels  were  subject  to  burdens  which  foreign 
vessels  were  free  from;  and  all  the  other  sections  of  the  statute 
had  reference  to  the  removal  of  such  burdens.  Section  18  was- 
not  in  the  original  bill  introduced  in  the  House  of  Representa- 
tives, but  it  is  found  in  substance  in  a  bill  introduced  in  the 
Senate,  which  proceeded  concurrently  with  that  in  the  House; 
and  it  was  retained  in  the  report  of  a  joint  committee  of  con- 
ference. Prior  statutes  had  established  an  exemption  or  limi- 
tation of  responsibility  for  losses  by  fire,  embezzlement,  and 
otherwise,  but  they  did  not  include  any  exemption  in  respect 
to  debts;  and  similar  limitations  existed  in  foreign  countries :- 
U.  S.  Stats.  1851,  c.  43,  sees.  1-4;  U.  S.  R.  S.,  sees.  4282- 
4284;  The  Scotland,  105  U.  S.  24;  Norwich  Co.  v.  Wright,  13- 
Wall.  104;  The  Rebecca,  1  Ware,  188.  A  similar  statute  had 
long  existed  in  Massachusetts:  Stats.  1818,  c.  122;  R.  S., 
c.  32,  sees.  1-4.  Except  as  thus  limited,  the  responsibility 
of  joint  owners  of  vessels  was  joint,  while  the  delectus  persona- 
rum  of  a  partnership  did  not  exist,  since  one  joint  owner  could 
transfer  his  share  in  the  vessel  without  the  consent  of  the 
others.  A  vessel  engaged  in  foreign  trade  is  liable  to  be  away 
from  home  for  long  periods  of  time,  under  the  control  of  agents. 
Section  18  sought  to  place  the  owners  of  such  vessels  more 
nearly  on  the  footing  of  stockholders  in  a  corporation,  in  order 
that  men  of  wealth  might  be  encouraged  to  invest  in  ships. 
Congress  was  not,  however,  at  this  time  dealing  with  fishing 
vessels,  but  with  vessels  engaged  in  foreign  commerce.  The 
merchant  shipping  is  treated  as  a  subject  distinct  from  the 
fisheries  in  legislation,  in  decisions  of  the  courts,  and  in  text- 
books: U.  S.  R.  S.,  tit.  48-53;  Wait  v.  Oibbs,  4  Pick.  298; 
Tfie  Swallow,  1  Ware,  21;    Taber  v.   United  States,  1  Story, 

1,  6,  7;  The  Three  Brothers,  1  Gall.  142;   Abbott  on  Shipping, 
Am.  ST.  Rep.,  Vol.  I.  — 81 


482  McPhee  v.  Litchfield.  [Mass, 

605,  606.  Section  18  appears  to  have  been  intended  to  relate 
to  the  same  common  object  with  the  rest  of  the  statute,  and 
does  not  extend  the  limitation  of  responsibility  to  owners  of 
fishing  vessels;  and  the  common-law  liability  of  such  owners 
remains. 

Since  the  decision  of  this  case,  the  attention  of  the  court 
has  been  called  to  the  United  States  Statutes  of  June  19, 1886, 
chapter  421,  section  4,  extending  the  provisions  of  the  United 

.  Statutes  of  1884,  chapter  121,  section  18,  to  all  sea-going  ves- 
sels. "While  this  does  not  affect  the  liability  of  the  defendant 
in  the  present  case,  it  confirms  the  construction  put  by  the 

-court  upon  the  Statutes  of  1884,  chapter  121,  section  18. 
Exceptions  overruled. 

~Each  Pabt-owner  op  Vessel  is  Liable  in  Solido  fob  Befaibs  asv 
'Supplies:  Elder  v.  Larrabee,  71  Am.  Dec.  567,  and  note;  note  to  Donndl  t. 
Walsh,  88  Id.  368,  where  the  qnestion  is  considered. 


MoPhee  v.  Litchfield. 

[145  MASSACH08BTTS,  565.] 

■CJERTrFiCATB  FiLED  tTNTEB  MECHANIC'S  LiEN  Law,  which  requires  the  name 
of  the  owner  or  owners  of  the  property,  if  known,  to  be  stated,  is  good, 
if  the  petitioner,  not  knowing  the  name  of  the  owner,  sets  forth  that 
the  land  ia  owned,  to  the  best  of  his  knowledge  and  belief,  by  a  certain 
named  person. 

Petition  against  Frederick  W.  Litchfield,  Catherine  Broder- 
ick,  and  Margaret  McNamara,  to  enforce  a  mechanic's  lien  for 
labor  performed  in  erecting  a  house.  The  facts  are  sufficiently 
«tated  in  the  opinion. 

T.  J.  Morrison^  for  the  petitioner. 
J.  A.  Maxwell,  for  the  respondents. 

By  Court,  Morton,  C.  J.  The  only  objection  made  by  re- 
epondents  to  the  validity  of  the  petitioner's  lien  is  that  the 
certificate  filed  by  him  in  the  registry  of  deeds  was  insuffi- 
cient. The  statute  provides  that  "  the  lien  shall  be  dissolved 
unless  the  person  desiring  to  avail  himself  thereof,  within 
thirty  days  after  he  ceases  to  labor  on  or  to  furnish  labor  or 
materials  for  the  building  or  structure,  files  in  the  registry  of 
deeds  for  the  county  or  district  in  which  the  same  is  situated, 
Jt  statement  of  a  just  and  true  account  of  the  amount  due 


Jan.  1888.]  McPhee  v.  Litchfield.  483 

him,  with  all  just  credits  given;  a  description  of  the  property 
intended  to  be  covered  by  the  lien,  sufficiently  accurate  for 
identification;  and  the  name  of  the  owner  or  owners  of  such 
property,  if  known  ":  Pub.  Stats.,  c.  191,  sec.  6. 

In  the  case  before  us,  the  petitioner  duly  filed  a  certificate 
which  was  in  all  respects  a  compliance  with  the  statute,  unless 
the  statement  therein  as  to  the  ownership  of  the  property  was 
insufficient.  This  statement  was  as  follows:  "  Said  lot  of  land 
being  owned,  to  the  best  of  my  knowledge  and  belief,  by  Cath- 
erine Broderick,  of  said  Chelsea."  In  fact,  the  property  was 
owned  by  the  defendant  McNamara,  but  the  petitioner  be- 
lieved that  the  defendant  Broderick  was  the  owner.  The 
statute  and  the  decisions  regard  it  as  important  that  the 
name  of  the  owner  should  be  given  in  the  certificate,  if  it  can 
be  done,  because,  otherwise,  subsequent  purchasers  who  buy 
upon  the  faith  of  the  registry  title  are  liable  to  be  misled; 
and  it  has  been  held  that,  if  a  petitioner  knows  the  true 
owner,  and  gives  a  wrong  name  in  his  certificate,  it  avoids 
the  certificate,  and  he  loses  his  lien:  Kelly  v.  LawSy  109  Mass. 
395;  Amidon  v.  Benjamin,  128  Mass.  534. 

But  the  statute  contemplates  that  there  may  be  cases  where 
the  name  of  the  owner  need  not  be  given  in  the  certificate. 
The  name  is  to  be  given  '*if  known."  This  implies  that  if 
the  name  is  not  known  to  the  petitioner,  the  certificate  is  good 
if  it  does  not  name  the  owner.  In  this  case  the  petitioner  did 
not  know  the  owner,  and  thus  it  differs  from  Kelly  v.  Laws 
and  Amidon  v.  Benjamin,  supra. 

This  case,  then,  is  one  where  the  name  of  the  owner  is  un- 
known. If,  the  certificate  had  so  stated,  no  fault  could  be 
found  with  it.  Does  the  fact  that  the  petitioner  innocently 
states  his  belief  that  the  respondent  Broderick  is  the  owner 
vitiate  the  certificate?  So  to  hold  would  be  to  import  into 
the  statute  a  provision  not  found  there.  We  are  of  opinion 
that  this  cannot  be  done,  especially  in  a  case  like  this,  where 
the  honest  mistake  of  the  petitioner  has  not  in  any  way  mis- 
led or  injured  the  respondents. 

Judgment  accordingly. 

Certiticatb  Of  Mechanic's  Lixn,  What  Rsquihkd  to  8tat>:  Bank  qf 
Charleston  v.  Curtiaa,  46  Am.  Dec.  32fi;  Shaw  v.  Bamu,  47  Id.  399;  Knabb't 
Appeal,  61  Id.  478;  Kennedy  v.  House,  60  Id.  694. 


484  Granite  National  Bank  v.  Fitch.  [Maes. 

Granite  National  Bank  v.  Fitoh. 

[145  Massachusetts,  567.] 

Pabtial  Payment  by  GaARANTOB  of  Note  doe3  not  Discharge  Maker 
PRO  Tanto,  if  such  payment  be  made  upon  the  agreement  that  the 
payee  shall  hold  the  note  &a  security  to  the  guarantor  for  the  amount 
paid,  as  well  as  for  the  balance  remaining  due  the  payee. 

New  Note  for  Balance  Due  on  Original  One  is  not  to  be  Treated 
AS  Payment  thereof,  when  the  new  note  was  sent  by  the  makers  to 
the  holder  of  the  original,  but  was  never  discounted  or  paid,  or  accepted 
in  discharge  of  the  original. 

Contract  against  R.  G.  Pitch,  A.  P.  Moore,  and  J.  E.  Moore, 
upon  a  promissory  note  signed  by  them  and  guaranteed  by 
D.  Alden  and  J.  W.  Bradbury.  The  action  was  discontinued 
as  to  all  the  defendants  except  Fitch.  It  appeared  that  after 
a  portion  of  the  note  had  been  paid  by  the  makers,  the  guar- 
antors paid  the  principal  part  of  the  balance,  leaving  the  sum 
of  $217.50  still  due,  upon  the  agreement  that  the  bank  should 
hold  the  note  as  security  to  the  guarantors  for  the  amount 
paid  by  them,  as  well  as  for  the  balance  remaining  due  to 
itself.  The  defendants  A.  P.  and  X  E.  Moore  subsequently 
sent  to  the  bank  their  note  for  the  balance  of  $217.50;  but 
such  note  was  never  discounted  or  paid,  or  accepted  by  the 
bank  in  discharge  of  the  original  note.  The  court  ruled  that 
the  foregoing  facts  which  it  found  constituted  no  defense,  and 
found  for  the  plaintiff  for  the  full  amount  of  its  claim,  with 
interest.    The  defendant  alleged  exceptions. 

R.  D.  Smith  and  M.  M.  Weaton^  for  the  plaintiff. 

Z.  S,  Arnold,  for  the  defendant. 

By  Court,  C.  Allen,  J.  The  guarantors  made  a  partial  pay- 
ment upon  the  note  in  suit,  but  it  is  found  by  the  court  that  the 
payment  was  made  upon  the  agreement  that  the  payee  and 
holder  of  the  note  should  hold  it  as  security  to  the  guarantors 
for  the  amount  paid  by  them  as  well  as  for  the  balance  remain- 
ing due  to  the  payee.  This  was  equivalent  to  an  agreement  that 
the  sum  paid  by  the  guarantors  should  not  be  deemed  a  pay- 
ment for  or  on  account  of  the  parties  primarily  liable  to  pay 
the  note,  but  that  the  note  should  be  kept  alive,  in  order  to 
be  put  in  suit  for  the  benefit  of  the  guarantors.  If  they  had 
paid  the  whole  amount  of  the  note,  there  is  no  doubt  that  they 
might  have  taken  an  indorsement  to  themselves,  and  brought 
suit  upon  it  in  their  own  names. 

It  is  not  necessary  to  determine  whether,  in  the  absence  of 


Jan.  1888.]  Brooks  v.  Brooks.  485 

any  express  understanding,  a  payment  in  whole  or  in  part  by 
guarantors  will  have  the  effect  to  extinguish  the  note  wholly 
or  pro  tanto;  though  this  result  is  often  broadly  denied:  See 
Story  on  Promissory  Notes,  sec.  400;  Byles  on  Bills,  7th  Am.  ed., 
173,  224,  225.  But  clearly,  where  there  is  an  agreement  that 
the  note  shall  be  kept  alive,  such  payment  does  not  discharge 
the  makers:  Pinney  v.  McGregory,  102  Mass.  186;  McGregory 
y.McGregory,  107  Id.  543;  Pacific  Bank  Y.Mitchell,  9  Met.  297, 
302;  Williams  v.  James,  15  Q.  B.  498;  Jones  v.  Broadhurst,  9 
Com.  B.  173;  Thornton  v.  Maynard,  L.  R.  10  C.  P.  695. 

As  to  the  subsequent  transaction,  by  which  two  of  the 
makers  sent  to  the  holder  of  the  note  their  new  note  for  the 
balance  remaining  due  beyond  the  amount  paid  by  the  guar- 
antors, it  is  expressly  found  that  the  holder  did  not  accept 
such  new  note  in  discharge  of  the  original  note;  and  under 
such  circumstances,  according  to  the  well-settled  doctrine,  the 
new  note  is  not  to  be  treated  as  payment:  Cotton  v.  AUaa 
National  Bank,  145  Mass.  43,  45. 

Exceptions  overruled. 

NoTK  Given  for  Prk-existino  Debt  i3  not  Payment  thsbeot,  unless  so 
Agreed:  Berry  v.  Gi-iffin,  69  Am.  Dec.  123,  and  note;  Tyner  v.  Stoops,  71  Id. 
Ml;  Blunt  v.  Walker,  78  Id.  709;  Weymouth,  v.  Sanborn,  80  Id.  144;  Winded 
Bank  V.  Webb,  100  Id.  435;  Roberta  v.  Fiaker,  3  Am.  Rep.  680;  Oibson  v. 
Tohey,  7  Id.  397;  Moaes  v.  Tiice,  8  Id.  609;  Hoopea  v.  Straabergtr,  11  Id,  538; 
Nighiingak  t.  CJvafee,  23  Id.  631;  Hunter  v.  Moult  42  Id.  610. 


Beooks  v.  Bbooks. 

ri45  MASBACBTJBnTB,  674.] 

EviSKNCB  ov  Sexual  Intercourse  and  FAMTLiABrriES,  Pbiob  to  Mar* 
RIAOB,  with  person  with  whom  adultery  is  charged,  is  admissible,  in  a 
libel  for  divorce  on  the  ground  of  adultery,  to  explain  the  character  of 
ambiguous  conduct  between  the  same  parties  after  marriage,  which  ia 
relied  on  as  evidence  of  the  act  of  adultery  in  issue. 

Libel  for  divorce  on  the  ground  of  adultery.  The  libelant 
offered  evidence  of  sexual  intercourse  between  the  libelee  and 
one  Percival  on  the  morning  of  her  marriage  to  the  libelant, 
and  before  the  marriage,  and  of  certain  familiarities  with  Per- 
cival shortly  prior  to  the  marriage,  consisting  of  visits  by  the 
libelee  to  Percival's  room.  The  libelee  objected  to  the  evi- 
dence, but  the  court  admitted  it,  on  the  ground  that  it  tended 
to  prove  sexual  intimacy  with   the  same  person  who  was 


486  Brooks  v.  Brooks.  [Mass. 

charged  with  adultery  with  the  libelee  after  marriage,  to  sup- 
port which  other  evidence  had  been  offered  and  received  with- 
out objection.  The  court  found  that  the  libelee  was  guilty  of 
adultery  with  Percival  after  marriage.  The  libelee  alleged 
exceptions  to  the  admission  of  the  evidence. 

W.  Gaston  and  T.  E.  Grover,  for  the  libelant. 
H.  Dunham,  for  the  libelee. 

By  Court,  Holmes,  J.  It  is  settled  that  evidence  of  in- 
decent familiarities  with  the  person  with  whom  adultery  ia 
charged,  and  even  of  sexual  intercourse  with  him,  at  other 
times  after  marriage,  is  admissible  to  explain  the  character  of 
ambiguous  conduct  relied  on  as  evidence  of  the  act  of  adultery 
in  issue:  Thayer  v.  Tliayer,  101  Mass.  Ill;  100  Am.  Dec.  110; 
Commonwealth  v.  Nichols,  114  Mass.  285;  19  Am.  Rep.  346; 
Commonwealth  v.  Merriam,  14  Pick.  518;  25  Am.  Dec.  420. 
There  can  be  no  doubt  that  evidence  of  sexual  intercourse  on 
the  morning  of  the  marriage,  and  of  acts  of  familiarity  shortly 
before,  tends  in  like  manner  to  explain  doubtful  conduct 
shortly  after  it.  The  objections,  based  on  the  general  rules  of 
evidence,  are  answered  by  Thayer  v.  Thayer,  supra.  It  is  said 
that  marriage  operates  as  an  oblivion  of  all  that  is  passed. 
But  there  is  no  reason  for  making  of  this  rule  a  veil  of  fiction 
which  prevents  the  facts  from  throwimg  their  natural  light  on 
subsequent  events:  See  Weatherley  v.  Weatherley,  1  Spinks, 
193,  196;  Van  Epps  v.  Van  Epps,  6  Barb.  320. 

Exceptions  overruled. 


Evidence  i3  Admissible  of  Improper  Familiarities,  Other  than  Thosx 
Alleged,  between  Parties,  in  actions  for  divorce,  or  criminal  prosecutions 
for  adultery:  Commonwealth  v.  Merriam,  2a  Am.  Dec.  420,  and  note;  Thayer 
r.  Thayetf  100  Id.  110,  and  note;  Comtoonwealth  ▼.  Nichols,  19  Am.  Rep.  346. 


CASES 


IN  THE 


SUPREME    COURT 


MICHIGAN, 


Donaldson  v.  Wilson. 

[60  MiCHlOAN,  86.] 

OwKEB  OF  Lands  is  Liablb  in  Damages  to  One  Who,  Using  Due  Care, 
Comes  thereon,  at  the  invitation  or  inducement,  express  or  implied,  of 
such  owner,  on  any  business  to  be  transacted  with  or  permitted  by  him, 
for  injuries  occasioned  by  the  unsafe  condition  of  the  premises,  known 
to  him,  and  suffered  negligently  to  exist,  and  of  which  the  injured  party 
has  no  knowledge. 

Landlord  is  under  No  Obligation  to  Subtenant  to  Keep  Leased 
Premises  in  Repair,  and  is  therefore  not  liable  in  damages  for  injuries 
to  the  property  of  the  subtenant  caused  by  the  falling  of  the  building 
by  reason  of  the  defective  condition  of  its  walls,  where  the  subletting 
and  occupancy  under  it  was  without  the  knowledge,  notice,  or  assent  o£ 
the  landlord,  and  in  violation  of  a  covenant  not  to  sublet. 

Case  by  Susannah  Donaldson  against  Samuel  W.  Odell. 
Judgment  was  rendered  for  Odell,  who  subsequently  died,  and 
the  action  was  revived  in  the  name  of  his  executor,  John  R. 
Wilson.  The  plaintiff  brought  error.  The  facts  are  stated  ii^ 
the  opinion. 

C  C.  Chamberlain,  for  the  appellant. 

Smith,  NimSj  Hoyt,  and  Erwin,  for  the  defendant. 

By  Court,  Champlin,  J.  Plaintiff  brought  an  action  on  the^ 
case  to  recover  the  value  of  certain  personal  property  destroyed 
in  consequence  of  the  falling  of  a  building  owned  by  Samuel 
W.  Odell,  the  defendant's  testator.  Judgment  was  rendered 
for  Odell,  who  subsequently  died,  and  the  suit  was  revived  itt 
the  name  of  the  defendant,  as  his  executor. 


•488  Donaldson  v.  Wilson.  [Mich. 

From  the  evidence  produced  on  the  trial  by  the  plaintiff,  it 
*^  appears  that  for  some  time  prior  to  the  twentieth  day  of 
March,  1882,  Brown  and  Friend  were  the  owners  of  lot  fifteen 
(15),  of  subdivision  of  block  seven  (7),  of  the  city  of  Muske- 
gon, on  which  was  a  two-story  brick  building,  the  foundations 
of  which  were  in  a  defective  condition;  and  that  by  reason  of 
euch  defects  the  building  fell  to  the  ground  in  December 
following.  On  the  twentieth  day  of  March,  1882,  Brown  and 
Friend  made  a  written  lease  of  said  lot  and  building  to 
Charles  R.  Walters  and  Richard  Sonenburg,  for  the  term  of 
•one  year  from  and  after  April  1,  1882.  In  the  lease,  Walters 
and  Sonenburg  agreed  to  pay  for  all  repairs  made  during  its 
life;  not  to  assign  nor  transfer  the  lease,  or  to  sublet  the 
premises,  or  any  part  thereof,  without  the  written  assent  of 
the  lessors;  to  keep  the  premises,  and  every  part  thereof, 
■during  the  continuance  of  the  lease,  in  as  good  repair,  and  to 
yield  them  at  the  expiration  of  the  term  to  the  lessors  in  like 
•condition,  as  when  taken,  reasonable  use  and  wear  and  dam- 
age by  the  elements  excepted.  Walters  and  Sonenburg  at 
once  took  possession,  using  the  ground-floor  for  a  saloon,  and 
the  second  story  as  a  residence,  Sonenburg  subsequently  sell- 
ing out  to  Walters,  who  continued  in  possession,  running  the 
saloon  until  the  building  fell.  In  May,  1882,  Brown  and 
Friend  sold  the  premises  to  S.  W.  Odell,  subject  to  the  lease 
to  Walters  and  Sonenburg,  and  assigned  the  lease  to  him.  In 
September,  1882,  the  plaintiff,  without  Odell's  knowledge  or 
assent,  rented  from  Walters  rooms  in  the  second  story  of  the 
building,  which  she  occupied  as  a  residence  until  December 
28,  1882,  when  the  building  fell,  and  her  property  was  dam- 
-aged.  The  plaintiff  knew  nothing  of  the  defective  condition 
of  the  building,  nor  did  she  know  who  owned  it.  In  March 
or  April,  1882,  Brown  and  Friend  had  the  building  examined, 
t)ut  the  testimony  does  not  show  that  Odell  had  any  knowl- 
edge of  its  condition." 

The  ground  of  action  alleged  in  plaintiff's  declaration  rests 
on  a  breach  of  duty  to  repair  the  building,  which  was  imposed 
on  Odell  by  reason  of  his  ownership.  In  order  to  sustain  her 
action,  it  was  incumbent  on  the  plaintiff  to  show  that  Odell 
owed  her  a  clear  legal  duty  to  keep  the  premises  in  repair. 

The  plaintiff  claims  that  it  was  the  duty  of  Odell  to  have 
4aken  such  care  of  the  foundation  walls  of  his  building  that 
they  should  not,  from  natural  and  a  very  ostensible  decay, 
precipitate  the  building  upon  the  property  of  the  plaintiff; 


i 


Jan.  1886.]  Donaldson  v.  Wilson.  489 

that  the  extremely  defective  and  dangerous  condition  of  the 
walls  was  so  obvious,  that  if  Odell  did  not  know  it,  he  ought 
to  have  known  it. 

It  is  well  established  that  the  owner  of  lands  is  liable  in 
damages  to  those  coming  thereon,  using  due  care,  at  his  invi- 
tation or  inducement,  express  or  implied,  on  any  business  to 
be  transacted  with  or  permitted  by  him,  for  an  injury  occa- 
sioned by  the  unsafe  condition  of  the  premises,  which  is* 
known  to  him  and  not  to  them,  and  which  he  has  suffered 
negligently  to  exist,  and  of  which  they  have  received  no  notice: 
White  V.  France^  L.  R.  2  C.  P.  Div.  308;  21  Eng.  Rep.  305;  Dub- 
lin W.  &  W.  Ry  Co.  V.  Slattery,  L.  R.  3  App.  Cas.  1155;  24 
Eng.  Rep.  713;  Hartwig  v.  Chicago  &  N.  W.  R'y  Co.,  49  Wis. 
358;  Hay  ward  v.  Merrill,  94  111.  349;  Camp  v.  Wood,  76  N.  Y. 
92;  32  Am.  Rep.  282;  Beck  v.  Carter,  68  N.  Y.  283;  23  Am. 
Rep.  175;  Davis  v.  Central  Cong.  Society,  129  Mass.  367;  37 
Am.  Rep.  368;  Nickerson  v.  Tirrell,  127  Mass.  236;  Carleton  v. 
Franconia  Iron  etc.  Co.,  99  Id.  216;  Bennett  v.  Railroad  Co., 
102  U.  S.  577;  SamueUon  v.  Cleveland  Iron  Mining  Co.,  49 
Mich.  170;  43  Am.  Rep.  456,  and  cases  there  cited. 

But  neither  the  plaintiff  nor  her  goods  were  upon  Odell'e 
premises  by  any  invitation  or  inducement  from  him.  There 
were  no  business  transactions  between  her  and  the  owner. 
She  entered  upon  the  premises  and  placed  her  property  there 
without  Odell's  knowledge  or  permission,  and  in  violation  of 
his  rights.  Plaintiff  claims  that  inasmuch  as  she  rented  the 
rooms  which  she  occupied  of  Walter  in  September,  and  con- 
tinued in  such  occupancy  until  in  December,  when  the  build- 
ing fell,  the  assent  of  Odell  to  the  subletting  ought  to  be 
presumed.  But  there  is  no  evidence  in  the  case  which  shows, 
or  tends  to  show,  that  Odell  had  either  knowledge  or  notice  of 
the  subletting,  or  of  her  occupancy  of  the  premises;  and  un- 
less ho  did  have  such  notice  or  knowledge,  there  is  no  foun- 
dation for  presuming  that  he  assented  thereto.  It  therefore 
appears  that  defendant's  testator  owed  to  plaintiff  no  duty  to 
keep  the  premises  in  repair.  The  cases  cited  in  defendant's 
brief  fully  support  the  views  above  expressed. 

The  judgment  must  be  affirmed. 

Owner  or  LANDa,  whk.v  Liable  for  Imjubies  to  Persons  Comino  on 
Premises:  See  Zoebuch  v.  TarbeU,  87  Am.  Dec.  660,  and  note  discussing  the 
question;  Swuny  v.  Old  Colony  etc.  R.  /?.,  87  Id.  644,  and  note;  EllioU  v. 
Pray,  87  Id.  653;  TolAn  v.  Portland  etc.  li.  R.,  8  Am.  Rey.  415,  and  note; 
Carnvbellv.  Portland  Sugar  Co.,  16  Id.  603;  Toledo  etc.  R'y  v.  Orruk,  16  Id. 


490  Donaldson  v.  Wilson.  [Mich. 

618;  Kefe  v.  Milwaukee  etc.  R'y,  18  Id.  393;  Pierce  v.  WUtcomh,  21  Id.  120; 
Severy  v.  Nickerson,  21  Id.  614;  TUinoia  Central  R.  R.  v.  Godfrey,  22  Id.  112; 
Beck  V.  Carter,  23  Id.  175;  McAlpin  v.  Powell,  26  Id.  555,  and  note;  Finch  v. 
Board  qf  Education,  27  Id.  414;  OramUdi  v.  ir«rs<,  27  Id.  684;  Parker  v. 
Portland  Publishing  Co.,  31  Id.  262;  Camp  v.  irootZ,  32  Id.  282;  Hay  ward 
V.  Ifiifer,  34  Id.  229;  Murray  v.  McShane,  36  Id.  367;  Z>ai;ts  v.  Central  Con- 
gregational Society,  37  Id.  368;  Low  v.  Grand  Trunk  R'y,  39  Id.  331 ;  Buesching 
V.  5^.  Louia  Gaslight  Co.,  39  Id.  503;  Lary  v.  Cleveland  etc.  R.  R.,  41  Id.  572; 
Campbell  v.  .ffoyc?,  43  Id,  740;  Gillespie  v.  McGowen,  45  Id.  365;  Nave  v.  /IJaci, 
46  Id.  205;  Parker  v.  Barnard,  46  Id.  450;  C?rai?ea  v.  Tlumas,  48  Id.  727; 
EvansmUe  etc.  R.  R.  v.  GriJJin,  50  Id.  783;  Larmore  v.  Crown  Point  Iron  Co., 
54  Id.  718;  Crofiran  v.  Schiele,  55  Id.  88;  CaWer  v.  Smalley,  55  Id.  270;  Schmidt 
V,  Abemethy,  59  Id.  16,  and  note;  Dalay  v.  Savage,  ante,  p.  429. 

Landlord's  Liability  to  Third  Persons  for  Injitries  Caused  by  Db- 
FECTivifc  Condition  of  Premises:  See  InhabitarUs  qf  Mil/ord  v.  HoJhrook,  85 
Am.  Dec.  735,  and  note;  note  to  Polack  v.  Pioche,  95  Id.  123;  Sldpley  v. 
Fijty  Associates,  3  Am.  Rep.  346;  8  Id.  318;  Fislier  v.  Thirlkell,  4  Id.  422; 
Irvine  v.  Wood,  10  Id.  603;  Leonard  v.  Storer,  15  Id.  76,  and  note;  Clancey 
V.  Byrne,  15  Id.  391,  and  note;  t/o^e  v.  Harteau,  15  Id.  438;  Campbell  v. 
Portland  Sugar  Co.,  16  Id.  503;  Swords  v.  Edgar,  17  Id.  295;  Burdick  v. 
Cheadle,  20  Id.  767;  .^Te/iOTgr  v.  Jordan,  21  Id.  189;  Shindelbeck  v.  JIfoore,  30  Id. 
584;  il/c/fen  v.  Morrill,  30  Id.  695;  iViwA  v.  Minneapolis  Mill  Co.,  31  Id.  349; 
i2^an  V.  Wilson,  41  Id.  384;  Edwards  v.  iVew  Fo/'i  ete.  R.  R.,  50  Id.  659; 
Ingwersen  v.  Rankin,  54  Id.  109;  fTo?/"  v.  Kilpatrich,  54  Id.  672;  Calder  v. 
Smalley,  55  Id,  270;  iCiiKs  v.  ShaUuck,  58  Id.  568;  ^/6er«  v.  /SCate,  59  Id.  159; 
Pierce  v.  Savings  Society,  ante,  p.  433;  Dalay  v.  Savage,  ante,  p.  429. 

Landlord's  Liability  to  Tenant  for  Injuries  Caused  by  Defectivh 
Condition  of  Premises:  See  note  to  Polack  v.  PiocJie,  95  Am.  Dec.  118; 
Doupe  V.  Genin,  6  Am.  Rep.  47;  Gill  v.  Middleton,  7  Id.  548;  Marsliall  v. 
CoAcn,  9  Id.  170;  Ja/c  v.  Harteau,  15  Id.  438;  Minor  v.  Sharon,  17  Id.  122; 
Ce«ar  v.  ^amfe,  19  Id.  164;  Glickauf  v.  Maurer,  20  Id.  238;  Toofe  v.  Beckett, 
24  Id.  54;  McAlpin  v.  Powell,  26  Id.  555;  Looney  v.  McLean,  37  Id.  295;  tAonet 
V.  Freidenburg,  42  Id.  80,  and  note;  Krueger  v,  Ferrant,  43  Id.  223;  McCarthy 
V.  York  County  Savings  Bank,  43  Id.  591;  Purcell  v.  English,  44  Id.  255;  Coie  v. 
Outkese,  44  Id.  499;  FToocia  v.  Naumkeag  Steam  Cotton  Co.,  45  Id.  344;  .5o2»e  v. 
Hunking,  46  Id.  471,  and  note. 

Landlord's  Liability  to  Sublessee  for  Injuries  Caused  by  Defbct- 
rvK  Condition  of  Premises:  See  Cole  v.  McKey,  67  Am.  Rep.  293. 


Jan.  1886.]    Michigan  Land  etc.  Co.  v.  Deer  Lake  Co.    491 

Michigan  Land  and  Iron  Company  v.  Deer  Lake 

Company. 

[60  MiCHiOAN,  U3.] 

Trkblb  Damages,  under  Section  7957,  Howell's  Statutes  op  Michi- 
gan, FOB  CuTTiNo  Timber  on  Land  of  Another,  are  in  their  nature 
punitory,  and  are  not  designed  to  be  inflicted  in  any  case  not  involving 
something  like  willful  wrong.  They  cannot  arise  from  mere  neglect,  but 
must  come  from  active  misconduct. 

Burden  of  Proof  of  Showing  that  Trespass  was  Casual  and  Involun- 
tary 13  UPON  Defendant,  where  treble  damages  are  claimed  by  the 
plaintiff,  under  section  7957,  Howell's  Statutes  of  Michigan,  for  cutting 
timber  on  his  land. 

MxASURE  of  Damages  for  Timber  Cut  by  Trespasser  on  Land  of  An> 
other,  but  not  Removed,  is  the  value  of  the  timber  standing,  where 
the  owner  did  not  refuse  to  allow  the  timber  to  be  removed  by  the  tres- 
passer, and  where  he  tried  to  sell  the  timber,  but  could  not,  and  subse- 
quently it  was  destroyed  by  fire,  although  it  seems  if  the  owner  had 
refused  to  permit  the  trespasser  to  remove  the  timber,  its  value  upon  the 
ground  would  then  have  been  deducted. 

Trespass.  The  facts  are  stated  in  the  opdnion.  The  prin- 
cipal question  in  the  case  related  to  the  plaintiff's  right  to 
recover  treble  damages,  under  section  7957,  Howell's  Stat- 
utes of  Michigan,  as  follows:  "  Every  person  who  shall  cut 
down  or  carry  off  any  wood,  underwood,  trees,  or  timber,  or 
shall  girdle  or  otherwise  despoil  or  injure  any  trees  on  the  land 
of  any  other  person,  without  the  leave  oi  the  owner  thereof,  or 
on  the  lands  or  commons  of  any  city,  township,  village,  or 
other  corporation,  without  license  therefor  given,  shall  be 
liable  to  the  owner  of  such  land,  or  to  such  corporation,  in 
three  times  the  amount  of  damages  which  shall  be  assessed 
therefor  in  an  action  of  trespass,  by  a  jury,  or  by  a  justice  of 
the  peace,  in  the  cases  provided  by  law  ";  and  section  7958, 
which  provides:  "If,  upon  the  trial  of  any  such  action,  it 
shall  appear  that  the  trespass  was  casual  and  involuntary,  or 
that  the  defendant  had  probable  cause  to  believe  that  the  land 
on  which  such  trespass  was  committed  was  his  own,  or  that 
Buch  wood,  trees,  or  timber  were  taken  for  the  purpose  of 
making  or  repairing  any  public  road  or  bridge,  judgment 
shall  be  given  to  recover  only  the  single  damages  assessed." 

Ball  and  Hansom,  for  the  plaintiff. 

E.  E.  Osbom  and  Henry  A.  Chaney,  for  the  defendant. 

By  Court,  Morse,  J.  The  main  question  in  this  case  relates 
to  the  recovery  of  treble  damages  under  the  statute  by  the 
plaintifif. 


492  Michigan  Land  etc.  Co.  v.  Deeb  Lake  Co.     [Mich. 

The  plaintiff  brought  suit  and  recovered  judgment  in  an  ac- 
tion of  trespass  against  the  defendant,  for  the  cutting  down  and 
carrying  off  of  pine  timber  growing  upon  its  lands. 

The  timber  was  cut  by  the  servants  of  the  defendant,  under 
the  direction  of  its  foreman. 

The  objections  to  the  verdict,  which  was  that  the  trespass 
was  casual  and  involuntary,  are  confined  to  alleged  errors  of 
the  court  in  his  instructions  to  the  jury. 

It  is  asserted  by  counsel  for  the  plaintiff  that  although  the 
circuit  judge  undertook  to  charge  the  jury  that  the  burden  was 
upon  the  defendant  to  show  that  the  trespass  was  casual  or 
involuntary,  yet,  in  effect,  he  instructed  them  quite  the  oppo- 
site, as  follows:  "  In  determining  this  question,  there  must  be 
some  evidence  of  willfulness,  wantonness,  or  evil  design  on  the 
part  of  Perry  (defendant's  foreman),  who  committed  the  tres- 
pass. Negligence  alone  is  not  sufficient  to  create  liability  in  a 
case  of  this  kind.  If  Perry  ....  honestly  believed  .  .  .  .  he 
was  on  the  lands  of  defendant,  he  would  not  be  liable  for  the 
trespass  himself  in  treble  damages,  nor  would  the  defendant 
in  the  case." 

This  is  claimed  to  be  equivalent  to  saying  that  the  plaintiff 
must  produce  that  character  of  evidence  before  the  defendant 
would  be  liable  under  the  statute. 

The  instruction  of  the  court  in  this  respect  was  correct,  and 
in  harmony  with  the  previous  decisions  of  this  court.  Treble 
damages  under  this  statute  are  in  their  nature  punitory,  and 
it  cannot  be  assumed  that  they  were  designed  to  be  inflicted 
in  any  case  not  involving  something  like  willful  wrong.  Such 
damages  cannot  arise  from  mere  neglect,  but  must  come  from 
active  misconduct:  Shepard  v.  Gates,  50  Mich.  498;  Wallace  v. 
Finch,  24  Id.  255-259.  The  court  clearly  put  the  burden  upon 
the  defendant  to  show  that  the  trespass  was  casual  or  involun- 
tary, as  follows:  Mr.  Ball,  for  plaintiff:  "I  ask  your  honor  to 
charge  the  jury  that  the  burden  of  proof  is  upon  the  defend- 
ant to  show  the  trespass  casual  and  involuntary,  and  not  upon 
the  plaintiff  to  show  it  was  willful." 

By  the  court:  "  That  is  so,  gentlemen." 

The  court  also  instructed  the  jury  that  the  defendant  was 
liable  for  the  damage  done  to  the  land,  if  any,  by  cutting  and 
removing  the  timber.  As  to  the  timber  cut  and  not  carried 
away,  but  left  upon  the  land  by  the  defendant,  the  court 
charged  the  jury  that  the  defendant  was  liable  only  in  case 


I 


Jan.  1886.]    Michigan  Land  etc.  Co.  v.  Deer  Lake  Co.    493 

the  plaintiff  had  no  opportunity  to  sell  or  dispose  of  it.  This 
is  assigned  as  error. 

From  the  evidence  it  appears  that  there  was  some  corre- 
spondence between  the  parties  in  reference  to  the  logs  left  upon 
the  land.  There  was  no  particular  dispute  about  the  quantity 
cut.  It  is  practically  conceded  on  both  sides  that  defendants 
cut  and  carried  away  about  6,500  feet,  and  left  upon  the  land 
about  72,000  feet,  of  which  some  18,000  feet  were  not  mer- 
chantable. Defendant  wrote  Horatio  Seymour,  Jr.,  who  had 
plaintiff's  interests  in  charge,  making  an  offer  for  the  logs, — 
61,665  feet  at  four  dollars  per  thousand, — coupling  said  offer 
with  the  following  condition:  "This  to  cover  the  matter  of 
trespass  on  section  17  in  full;  we  to  have  the  logs,  and  permis- 
sion to  remove  them."  Seymour,  in  behalf  of  plaintiff,  replied 
that  he  was  willing  to  take  defendant's  estimate  of  the  logs, 
but  refused  to  take  the  amount  offered  in  full  settlement  of  the 
trespass,  claiming  willful  negligence  in  defendant  amounting 
to  willful  trespass,  and  stating  that  for  $316.62  he  would  settle 
in  full.  Defendant  then  wrote,  declining  to  take  the  logs,  and 
made  another  offer  to  cover  the  damage  to  freehold  and  the 
value  of  the  logs  removed,  amounting  to  $54,  which  last  offer 
Seymour  refused. 

The  court's  charge  in  full  in  relation  to  the  logs  cut,  but  not 
removed,  was  as  follows:  "As  to  the  question  of  damages, 
it  appears  that  some  of  the  timber,  as  I  have  said,  had  been 
removed,  the  rest  remaining  skidded  upon  the  land.  When 
Rood  ascertained  that  tbe  trespass  had  been  committed,  he 
then  entered  into  negotiations,  as  I  have  said,  to  settle  the  mat- 
ter, and  obtain  the  title  to  the  timber.  These  negotiations  did 
not  result  in  a  settlement.  The  defendant  had  no  right  to 
enter  upon  the  lands  to  remove  the  timber  that  was  cut  down 
and  skidded,  because  in  so  doing  he  would  be  guilty  of  a  fresh 
trespass. 

"The  plaintiff  claims  that  he  is  liable  for  the  value  of  the  tim- 
ber BO  removed  from  the  realty,  and  left  upon  the  land  in  the 
manner  indicated.  The  defendant  claims  that  it  was  the  duty 
of  the  plaintiff  to  dispose  of  the  timber,  if  there  was  a  chance 
to  dispose  of  it  and  sell  it,  and  that  he  cannot  recover  in  dam- 
ages for  the  value  of  the  timber,  if  such  was  the  case. 

"  I  charge  you,  gentlemen,  that  if  the  plaintiff,  after  ascer- 
taining that  the  timber  was  cut  upon  the  land,  had  an  oppor- 
tunity to  dispose  of  it,  —  to  sell  it,  —  it  was  his  duty  to  do  so; 
and  if  he  did  not  do  so,  he  cannot  recover  for  the  value  of  the 


49 1  Michigan  Land  etc.  Co.  v.  Deer  Laxe  Co.      [Mich. 

timber  that  was  cut  and  left  upon  the  lands,  or  at  least,  for 
the  price  at  which  he  might  have  sold  it.  For  illustration :  If 
a  man  trespass  upon  another's  land,  and  cuts  off  one  hundred 
cords  of  wood,  and  piles  it  up,  and  before  moving  it  ascertains 
that  he  has  trespassed  upon  another's  land  in  doing  so,  and 
the  owner  of  the  land  refuses  to  permit  him  to  remove  that 
wood,  and  refuses  to  sell  it,  he  cannot  recover  for  the  value  of 
that  wood,  provided  he  has  a  fair  chance  to  sell  and  dispose 
of  it. 

"  Such  is  the  case  with  the  timber  in  this  case.  It  cannot 
be  the  law  that  although  the  defendant  had  done  wrong — al- 
though it  had  committed  a  trespass — that  the  plaintiff  can 
refuse  to  dispose  of  the  property  which  has  been  cut,  when  it 
had  an  opportunity  to  do  so,  and  then  recover  for  its  value  of 
the  defendant.  Of  course,  if  you  find  from  the  testimony  that 
the  plaintiff  had  no  chance  or  opportunity  to  sell  the  timber 
80  cut  and  skidded,  then  of  course  the  defendant  would  be 
liable  for  its  value." 

There  was  no  evidence  other  than  the  correspondence  be- 
tween Seymour,  on  the  part  of  the  plaintiff,  and  Rood,  on  the 
part  of  the  defendant,  showing,  or  tending  to  show,  any  refusal 
on  the  plaintiff's  part  to  allow  defendant  to  take  away  the  logs 
cut.  Neither  was  there  any  refusal  to  do  so  in  the  letters  of 
Seymour.  The  defendant  offered  so  much  in  settlement  of  the 
whole  claim  for  trespass,  it  to  take  the  logs  with  permission  to 
remove  them.  Plaintiff  did  not  refuse  such  permission,  but 
would  not  settle  the  trespass  unless  a  larger  sum  of  money  was 
paid  than  defendant  tendered  by  its  letter. 

Under  these  circumstances,  it  seems  to  us  that  the  charge  of 
the  court  was  incorrect.  The  testimony  further  shows  that 
after  the  negotiations  for  settlement  were  broken  off,  plaintiff 
tried  to  sell  the  logs,  and  could  not.  The  logs  were  subse- 
quently destroyed,  or  nearly  so,  by  fire.  The  plaintiff  was 
entitled  to  have  these  pine  trees  standing  upon  its  land.  They 
would  have  remained  so  had  it  not  been  for  the  trespass  of  the 
defendant.  It  would  seem,  upon  natural  principles,  that  the 
plaintiff  ought  to  recover  the  value  of  the  timber  standing, — 
what  it  would  have  been  worth  if  not  cut  down.  If  plaintiff 
had  refused  to  let  defendant  take  the  logs  away,  it  would  have 
been  different, — the  value  of  the  logs  upon  the  ground  might 
have  then  been  deducted. 

In  Wood  v.  Elliott,  51  Mich.  320,  this  court  decided  that 
cutting  the  standing  timber  belonging  to  another,  although 


Jan.  1886.]    Michigan  Land  etc.  Co.  v.  Deer  Lake  Co.    495 

the  land  belonged  to  the  trespasser,  and  the  plaintiff  only  had 
the  right  to  the  timber  by  removing  it  within  a  reasonable 
time,  was  a  conversion,  and  the  plaintiff  was  entitled  to  the 
actual  value  of  the  timber.  The  defendant,  in  that  case,  cut 
down  the  timber,  and  converted  it  into  wood.  In  mitigation 
of  damages,  he  pleaded  that  the  wood  belonged  to  the  plain- 
tiff. The  circuit  court  instructed  the  jury  that  he  was  liable 
for  the  full  value  of  the  timber  standing,  and  this  court  sus- 
tained the  charge:  See  also  2  Waterman  on  Trespass,  sec. 
1098;  Sanderson  v.  Haverstick,  8  Pa.  St.  294;  Sampson  v. 
Hammond,  4  Cal.  184;  Moody  v.  Whitney,  34  Me.  563;  Indian- 
apolis, P.  &  C.  R.  Co.  V.  Mustard,  34  Ind.  50;  Champion  v.  Vin- 
cent, 20  Tex.  811. 

There  was  no  evidence  tending  to  show  an  election  upon  the 
part  of  plaintiff  to  keep  the  logs.  The  wood  illustration  was 
not  supported  by  the  evidence,  yet  the  court  said:  "Such  is 
the  case  with  the  timber  in  this  case,"  thus  virtually  instruct- 
ing the  jury  that  plaintiff  had  refused  to  let  defendant  remove 
the  logs.  There  is  nothing  in  the  record  tending  to  show  any 
such  refusal. 

For  this  error,  the  judgment  must  be  reversed,  and  a  new 
trial  granted,  with  costs  of  this  court. 

Sherwood,  J.  I  concur  in  the  result  at  which  my  brethren 
have  arrived  in  this  case,  but  cannot  agree  with  them  as  to 
the  character  of  the  acts  of  the  defendant  necessary  to  be 
Bhown  to  entitle  the  plaintiff  to  recover  treble  damages,  under 
the  statute,  for  the  injury  sustained. 

When  negligence  is  indulged  to  the  extent  of  showing  utter 
disregard  for  the  property  rights  of  another,  it  becomes  wanton, 
and  under  it,  acts  of  trespass  committed  become  willful,  or 
amount  to  the  same  thing. 

The  testimony  in  this  case  strongly  tended  to  show  the  acts 
of  the  defendant  to  be  of  that  character,  and  the  jury  should 
have  been  permitted  to  take  this  view  of  the  subject.  They, 
however,  were  precluded  from  doing  so  under  the  charge  of  the 
court.  It  is  idle  to  talk  about  a  party  acting  in  good  faith 
while  taking  and  converting  the  property  of  another  to  his 
own  use  without  knowing,  or  making  an  effort  to  know, 
whether  he  has  any  right  to  it  or  not.  In  this  case,  the  de- 
fendant took  no  means  which  would  enable  its  foreman  to  cor- 
rectly ascertain  the  boundaries  of  its  own  property,  or  to  ascer- 
tain whether  or  not  its  servants  were  trespassing  in  cutting  the 


496  Michigan  Land  etc.  Co.  v.  Deer  Lake  Co.     [Mich. 

timber  claimed  for.  Such  lawlessness  and  disregard  for  the 
rights  and  interests  of  others  are  little  less  than  vandalism, 
and  never  accompany  or  characterize  acts  done  in  good  faith, 
and  I  can  never  consent  they  should  receive  the  sanction  of 
courts  as  such. 

The  charge  of  the  court  upon  the  subject  of  negligence,  in 
my  judgment,  was  not  correct.  The  circuit  judge  should  have 
told  the  jury  they  might  find  the  acts  of  the  defendant  in  cut- 
ting the  plaintiff's  timber  wanton  from  the  grossness  of  the 
negligence  alone,  and  if  they  found  such  to  be  the  fact,  the 
plaintiflF  would  be  entitled  to  recover  treble  damages  under 
the  statute. 

For  this  error,  as  well  as  the  other  pointed  out  by  my  breth- 
ren, the  judgment  should  be  reversed,  and  a  new  trial  granted. 


Statutory  Penalties  for  Cuttinq  down,  Injxtrino,  Destroting,  ob 
Carrying  away  Timber.  —  Statutes  in  several  of  the  states,  as  in  Michi- 
gan, provide  that  if  any  person  shall  cut  down,  injure,  destroy,  or  carry 
away  trees  or  timber  on  the  land  of  another,  without  the  latter's  consent, 
the  offender  shall  be  liable  to  the  owner  of  the  land  in  treble  damages,  or,  ac- 
cording to  another  form,  shall  forfeit  to  the  owner  a  certain  sum  for  each  tree  so 
cut,  injured,  destroyed,  or  carried  away.  A  few  of  these  statutes  expressly 
enact  that  if  it  appears  that  the  trespass  was  casual  and  involuntary,  or  that 
the  trespasser  had  probable  cause  to  believe  that  the  land  on  which  the  tres- 
pass was  committed  was  his  own,  single  damages  only  can  be  recovered; 
but  whether  they  so  enact  or  not,  it  is  uniformly  held  that  to  subject  a  party 
to  treble  damages,  or  to  a  forfeiture,  as  the  case  may  be,  he  must  have  com- 
mitted the  wrong  knowingly  and  willfully,  or  under  such  circumstances  as 
to  make  him  guilty  of  inexcusable  negligence:  Russell  v.  Irby,  13  Ala.  131; 
Bamea  v.  Jones,  51  Cal.  303;  Gushing  v.  Dill,  2  Scam.  460;  WMtecrOifl  v.  Van- 
derver,  12  111.  236;  Cuskman  v.  Olive?;  81  Id.  444,  446;  Wagstaffv.  Schippel, 
27  Kan.  450;  Bussell  v.  Myers,  32  Mich.  522;  Wallace  v.  Finch,  24  Id.  255; 
Mhoon  V.  Oreenfield,  52  Miss.  434;  McCleai-y  v.  AntJiony,  54  Id.  708;  Keini  v. 
Warfield,  60  Id.  799;  Baker  v.  Hamilton  etc.  R.  R.,  36  Mo.  543;  Schmidt  v. 
Densmore,  42  Id.  225;  Brown  v.  Carter,  52  Id.  46,  48;  Batchelder  v.  Kelly, 
10  N.  H.  436;  34  Am.  Dec.  174,  and  note;  Morrison  v.  Bedell,  22  N.  H.  234, 
237;  Dubois  v.  Beaver,  25  N.  Y.  123;  82  Am.  Dec.  326;  but  see  Wright  v. 
Brown,  5  Kan.  600.  So  where  a  statute  provides  that  whosoever  shall  con- 
vert to  his  own  use,  without  the  consent  of  the  owner,  logs  or  lumber,  shall 
be  liable  to  the  owner  in  treble  damages,  it  must  be  held  to  apply  only  to 
cases  in  which  some  element  of  willfulness,  wantonness,  or  evil  design  enters 
into  the  act:  Cohn  v.  Neeves,  40  Wis.  393.  A  trespass  committed  through 
an  iimocent  mistake  as  to  the  boundary  lines  is,  therefore,  not  within  vhe 
contemplation  of  the  statute;  Russell  v.  Irby,  13  Ala.  131;  Barnes  v.  Jones, 
51  Cal.  303;  nor  can  treble  damages  be  recovered  where  the  trespasser  had 
probable  cause  for  supposing  he  had  title  himself,  or  that  he  had  authority 
from  the  real  owner:  Russell  v.  Myers,  32  Mich.  522;  nor  is  a  railroad  com- 
pany liable  in  such  damages  where  it  acts  in  good  faith,  under  a  supposed 
authority  conferred  upon  it  by  its  charter:  Lindell  v.  Hanvibal  etc.  R.  R  ,  25 


Jan.  1886.]    Michigan  Land  etc.  Co.  v.  Deer  Lake  Co.    497 

Mo.  550.  It  would  not  be  sufficient  to  show  that  the  trees  were  cut  by  per- 
sons employed  by  the  defendant  to  cut  timber  on  his  own  land,  and  appro- 
priated by  them  to  the  use  of  the  defendant:  Cusldng  v.  Dill,  2  Scam.  469;: 
and  where  the  master  would  not  be  liable  if  he  cut  the  trees  himself,  he  will 
not  be  liable  for  the  acts  of  his  servants  in  obeying  his  instructions:  Jiussell 
V.  Jrby,  13  Ala.  131;  but  a  master  is  liable  for  a  trespass  committed  by  his 
servants,  with  his  knowledge  and  approbation,  or  subsequent  sanction:  Exum 
V.  Brister,  35  Miss.  391;  and  if  one,  intending  to  commit  a  trespass  on  public 
lands,  through  mistake  cuts  down  trees  on  the  land  of  an  individual,  he  is 
liable  under  the  statute:  Givens  v.  Kendncl;  15  Ala.  648;  Perldna  v.  Hackel- 
man,  26  Miss.  41;  59  Am.  Dec.  243;  Emerson  v.  Beavans,  12  Mo.  511.  The 
burden  of  showing  probable  cause,  or  unintentional  mistake,  and  reasonable 
care  to  avoid  it,  is  on  the  defendant:  Walther  v.  Warner,  26  Id.  143;  Holli' 
day  V.  Jackson,  21  Mo.  App.  660;  Keim  v.  Warjield,  60  Miss.  799. 

Treble  damages  can  only  be  allowed  in  case  single  damages  are  assessed: 
Clark  V.  Field,  42  Mich.  342.  The  jury  can  only  assess  single  damages.  When 
a  proper  case  is  made  out  for  trebling  the  damages,  it  can  only  be  done  by  the 
court:  Brewster  v.  Link,  28  Mo.  147;  and  see  Newcomb  v.  Butterfield,  8  Johns. 
342;  and  as  the  jury  can  lawfully  assess  single  damages  only,  it  will  be  presumed 
that  they  have  done  so,  in  the  absence  of  anything  to  the  contrary,  so  that 
the  court  may  treble  the  damages:  Cooper  v.  Martin,  6  Mo.  634;  George  v 
Rook,  7  Id.  149.  The  court  in  Missouri  is  not  authorized  to  treble  the  dam- 
ages assessed  by  the  jury  in  a  general  verdict,  in  a  case  where  the  petition 
contains  counts  under  the  statute  and  at  common  law:  Lowe  v.  Harrison,  8 
Id.  350;  Brewster  v.  Link,  supra;  Shrewsbury  v.  Bawlitz,  57  Id.  414;  nor 
where  the  petition  claims  for  a  wrongful  entry,  and  for  timber  cut  and  car- 
ried away,  and  the  verdict  is  general,  not  finding  the  value  of  the  timber: 
Ewing  v.  Leaton,  17  Id.  465;  Labaume  v.  Woolfolk,  18  Id.  614;  Herron  v. 
Homback,  24  Id.  492;  but  these  decisions  are  made  under  a  statute  which 
provides  that  "the  party  so  offending  shall  pay  to  the  injured  party  treble 
the  value  of  the  thing  so  injured,  broken,  destroyed,  or  carried  away."  In 
Michigan  and  in  New  York,  where  the  statutes  are  the  same,  the  offender  is 
to  pay  treble  the  damages  assessed  for  the  trespass:  Ackey  v.  Hull,  7  Mich. 
423;  Van  Deusen,  29  N.  Y.  9,  25. 

The  word  "  owner,"  as  used  in  the  statutes,  means  the  person  who  has  the 
estate  in  fee.  Therefore,  to  maintain  an  action  under  the  statute,  the  plain- 
tiff most  aver  and  prove  that  he  was  the  ovmer  of  the  land  in  fee:  WiiglU  v. 
Bennett,  3  Scam.  258;  Whiteside  v.  Divers,  4  Id.  336;  Jarrot  v.  Vaughn,  2 
GUm.  132;  Clay  v.  Boyer,  5  Id.  506;  Edwards  v.  Hill,  11  111.  22;  Abney  v. 
Austin,  6  III.  App.  49;  Missouri  etc.  Ry  v.  Bobbins,  10  Kan.  473;  Achey  v. 
Hull,  7  Mich.  423;  McCUary  v.  Antliony,  54  Miss.  708;  bat  the  ovmer  may 
recover  whether  he  be  in  possession  or  not:  FitapaZrick  v.  Oeb/uirt,  7  Kan.  35; 
Sullivan  v.  Davis,  29  Id.  28.  The  objection  that  the  declaration  does  not 
contain  a  sufficient  averment  of  the  plaintiff's  ownership  to  support  a  finding 
in  his  favor  should  be  raised  by  demurrer:  Clark  v.  Field,  42  Mich.  342.  It 
has  also  been  held  that  the  United  States  is  a  "person,"  within  the  statute 
of  Kansas,  which  makes  it  an  offense  for  any  person  to  cut  down,  injure, 
destroy,  or  carry  away  any  tree  "standing,  being,  or  growing  on  the  land  of 
any  oUier  person  ":  State  v.  Herold,  0  Kan.  194. 

Mkasitrx  of  Damaoxs  nr  Trespass  or  Trovkr  for  Timber  Cxrr  on  Am- 

other's  Laud:  See  Foote  v.  Merrill,  20  Am.  Rep.  151;  Isle  Boyal  Mining  Co. 

▼.  HerUn,  26  Id.  620;  Railway  Co.  t.  HutcMns,  30  Id.  629;  Tilden  v.  Johnaon, 

36  Id.  769,  and  note;  TuUle  v.  White,  41  Id.  176;  Skinner  v.  Pinaey,  45  Id.  1^ 

AX.  St.  Bxp.,  Vol.  L— 82 


498  People  v.  Harshaw.  [Mich. 

Ayrea-v.  Hubbard,  58  Id.  361;  and  see  Herdicv.  Young,  93  Am.  Dec.  739; 
and  for  coal  or  ore  mined  on  another's  land,  see  Barton  Coal  Co.  v.  Cox,  17 
Am.  Rep.  525;  Illinois  etc.  Coal  Co.  v.  Ogle,  25  Id.  342;  Waters  v.  Stevenson, 
29  Id.  293;  McLean  County  Coal  Co.  v.  Lennon,  33  Id.  64,  and  note;  Franklin 
^oal  Co.  V.  McMillan,  33  Id.  280;  Austin  v.  Huntsville  Coal  etc.  Co.,  37  Id. 
<446;  Blaen  Avon  Coal  Co.  v.  McCulloh,  43  Id.  560,  and  note;  Coal  Creek  Min- 
ing etc  Co.  V.  Moses,  64  Id.  415,  and  note. 


People  ex  eel.  Dafoe  v.  Haeshaw. 

160  michiqajt,  200.] 

Provision  in  Citt  Chabtek  that  "  CJommon  Codkcil  shall  be  Judgk  ot 
Election  and  Qualifications  of  its  Own  Members,  and  shall  have 
the  power  to  determine  contested  elections,"  is  conclusive,  and  not  sub- 
ject to  review. 

Mafob  07  City  is  Member  of  Council,  within  the  meaning  of  a  provision 
in  its  charter  that  "the  common  council  shall  be  the  judge  of  the  elec- 
tion and  qualifications  of  its  own  members,  and  shall  have  the  power  to 
determine  contested  elections,"  when  the  charter  also  provides  that 
"the  mayor,  recorder,  and  aldermen,  when  assembled  together  and  or- 
ganized, shall  constitute  the  common  council  of  the  city." 

Legislature  has  Power  to  Leave  Cities  to  Determinb  Titlb  or  their 
Own  Officers  without  further  review;  for  the  remedy  by  information,  aa 
well  as  by  quo  warranto,  is  not  a  matter  of  right,  but  of  discretion,  and 
may  be  withheld  by  the  legislature. 

Information  to  determine  the  title  of  the  respondent  to  the 
office  of  mayor  of  the  city  of  Alpena.  The  opinion  states  the 
facts. 

L.  O.  Dafoe  and  R.  J.  Kelley,  for  the  relator. 

A.  R.  McDonald  and  J.  D.  Turnbull,  for  the  respondent. 

By  Com:t,  Campbell,  C.  J.  The  present  proceeding  by  in- 
formation in  the  nature  of  quo  warranto  was  filed  to  determine 
the  title  of  respondent  to  the  office  of  mayor  of  Alpena.  The 
plea  averred  an  election,  and  subsequent  determination  by  the 
common  council  that  he  was  duly  elected.  The  only  question 
is,  whether  the  action  of  the  common  council  is  final  in  such 
matters. 

By  the  charter  of  Alpena  it  is  provided  that  "  the  mayor, 
recorder,  and  aldermen,  when  assembled  together  and  organ- 
ized, shall  constitute  the  common  council  of  the  city  of 
Alpena,"  etc.:  Laws  of  1871,  vol.  2,  sec.  6,  p.  79.  All  of  the 
corporate  powers  of  the  city  are  vested  in  this  body.  By  sec- 
tion 15  it  is  declared  that  "  the  common  council  shall  be  the 
judge  of  the  election  and  qualifications  of  its  own  members, 


Jan.  1886.]  People  v.  Harshaw.  499 

and  shall  have  the  power  to  determine  contested  elections,  to 
compel  the  attendance  of  absent  members,  to  determine  the 
rules  of  proceedings,  and  pass  all  by-laws  and  rules  necessary 
and  convenient  for  the  transaction  of  business  not  inconsistent 
with  the  provisions  of  this  act." 

As  this  court  has  on  several  occasions  determined  that  where 
such  a  provision  is  contained  in  a  city  charter  it  is  conclusive, 
there  is  no  occasion  to  discuss  the  question  of  authority:  Peo- 
ple V.  Mayor  of  Port  Huron,  41  Mich.  2;  Cooley  v.  Ashley,  43 
Id.  458;  Alter  v.  Simpson,  46  Id.  138;  Doran  v.  De  Long,  AS  Id. 
552.  The  same  provision  is  found  in  many  of  our  charters, 
and  is  incorporated  in  the  general  statutes  for  the  incorpora- 
tion of  cities:  Howell's  Statutes,  sec.  2514. 

There  can  be  no  doubt  that  under  the  section  in  question  the 
mayor  is  a  member  of  the  common  council. 

City  charters  here,  as  in  England,  do  not  always  agree  in 
the  constituents  of  this  body.  In  some  cases  there  is  a  sepa- 
rate council,  which  is  only  one  of  the  parts  of  the  city  legis- 
lature, and  requiring  the  approval  of  another  board,  or  of  the 
mayor,  acting  separately,  as  the  governor  does,  to  complete 
their  action.  But  most  of  our  cities  in  their  earlier  stages,  if 
not  permanently,  have  had  a  council  where  the  mayor  sits  in 
person,  and  over  whose  action  he  has  no  veto.  And  in  all  such 
corporations  he  has  been  deemed  a  member  as  clearly  as  the 
alderman;  and  so  far  as  any  such  provision  as  this  is  con- 
cerned, there  appears  to  be  no  reason  for  a  distinction. 

The  value  and  importance  of  the  remedy  by  information, 
where  not  otherwise  provided  for,  is  recognized.  But  that  rem- 
edy, as  well  as  the  one  by  the  old  writ  of  quo  warranto,  never 
existed  as  a  matter  of  right,  but  was  subject  to  the  discretion 
of  the  court  in  disputes  concerning  corporate  officers.  The 
courts  exercised  a  broad  discretion,  and  in  offices  of  short  du- 
ration there  is  not  much  to  favor  interference  in  ordinary  cases. 
In  Rex  V.  Dawheny,  Strange,  1196,  it  was  held  not  proper  in  the 
case  of  a  church- warden,  who,  although  having  important  local 
functions,  was  chosen  annually.  The  information  in  its  mod- 
ern form  is  a  statutory  and  not  a  common-law  proceeding;  and 
where  a  remedy  is  not  one  of  right,  but  of  discretion,  it  would 
be  going  too  far  to  hold  that  it  could  not  be  withheld  by  the 
legislature  in  cases  where  formerly  the  courts  could  have  with- 
held it. 

Our  constitution  in  express  terms  vests  all  the  judicial  power 
in  courts,  and  no  such  power  can  exist  in  a  legislative  body. 


600  People  v,  Harshaw.  [Mich. 

It  has  nevertheless  been  deemed  wise  to  avoid  the  delays  and 
diflBculties  of  legal  disputes,  to  provide  for  a  final  adjudication 
of  the  title  to  office,  not  only  of  members  of  the  legislature, 
but  of  all  the  state  officers  and  judges,  either  in  the  houses  of 
the  legislature  or  in  the  board  of  state  canvassers:  People  v. 
Ooodwin,  22  Mich.  496.  Our  legislature  has  been  careful  to 
leave  these  matters  in  all  proper  cases  open  to  judicial  contro- 
versy; but  in  cities,  where  the  tenure  of  office  is  short,  and  is 
of  local  rather  than  general  interest,  it  has  been  common  from 
a  very  early  period  in  creating  these  municipal  legifilatures 
to  give  them  the  same  power  of  determination  in  local  offices 
that  is  given  to  the  state  legislature,  or  its  houses,  in  state 
offices. 

In  People  v.  Sweeting,  2  Johns.  184,  the  supreme  court  of 
New  York  denied  leave  to  the  attorney-general  to  file  an  in- 
formation against  a  local  officer,  when  there  could  be  no  deter- 
mination of  the  case  before  a  new  election.  The  same  rule 
was  laid  down  by  the  supreme  court  of  Massachusetts  in  Com- 
monwealth V.  Aihearn^  3  Mass.  285;  and  in  State  v.  Tudor,  5 
Day,  329,  5  Am.  Dec.  162,  where  a  case  came  up  on  error,  the 
supreme  court  of  Connecticut,  although  discovering  error,  re- 
fused to  send  the  case  back  for  a  new  trial  after  the  office  had 
expired.  All  of  these  cases  show  that  the  remedy  is,  at  com- 
mon law,  not  a  matter  of  right,  and  being  so,  it  cannot  be  held 
beyond  the  power  of  the  legislature  to  leave  cities  to  determine 
the  title  of  their  own  officers  without  further  review. 

Judgment  was  rightly  given  for  defendant,  and  should  be 
affirmed. 

Champlin,  J.    I  concur  in  the  result. 


Information  to  Question  Titlb  of  Membke  of  Citt  CotmoiL  will  not 
Lib  when  the  city  charter  makes  the  council  the  judge  of  the  election  and 
qualifications  of  its  own  members:  See  note  to  People  v.  Senaaelaer  etc.  R.  R., 
30  Am.  Dec.  49. 

Quo  Warbanto  is  not  Writ  of  Right,  but  rests  in  the  discretion  of  the 
court:  Note  to  People  v.  Rensselaer  etc.  R.  R.,20  Am.  Dec.  60;  CommontoeaM 
V.  Arrison,  16  Id.  531;  but  see  Statey.  Harris,  36  Id.  460.  It  will  not  be 
issued  where  the  term  of  office  has  expired,  or  will  expire,  before  the  trial: 
State  V.  Tudor,  5  Id.  162;  People  v.  Loomis,  24  Id.  33. 


April,  1886.]  People  v.  Babkeb.  501 


People  v.  Barker. 

[60  Michigan,  277.1 

Opinion  Which  Disqualifies  Jurob  in  Criminal  Cask  is  of  that  fixed 
character  which  repels  the  presumption  of  innocence  of  the  accused,  who 
is  already  condemned  in  the  juror's  mind;  and  such  disqualification  does 
not  arise  because  it  will  require  some  evidence  to  remove  impressions  or 
opinions  formed  from  rumors,  newspaper  statements,  or  other  sources. 

Sources  of  Information  are  Important  in  Determining  Effect  Likelt 
TO  HAVE  BEEN  PRODUCED  UPON  MiND  OF  JuROR,  in  a  Criminal  case, 
and  the  influence  likely  to  be  exerted  upon  his  judgment;  but  impres- 
sions made  upon  the  mind  which  lead  towards  certain  conclusions, 
whether  reached  or  not,  will  always  require  other  impressions  to  be 
made  to  eradicate  the  former  ones,  or  to  lead  to  different  conclusions, 
or  in  other  words,  will  require  some  evidence  to  remove  them. 

Question  whether  Juror  in  Criminal  Cask  is  Disqualified  bt  Rea- 
son OF  his  Opinion  must  be  Alwats  One  of  Degree;  and  the  trier 
is  called  upon  to  determine  whether  the  opinion  entertained  is  of  that 
fixed  or  permanent  character  which  disqualifies  him  from  coming  to  the 
case  in  a  fair  and  impartial  frame  of  mind,  unaffected  with  prejudice  or 
favor  to  either  party. 

Accused  is  not  Prejudiced  by  Ibipropeb  Overruling  Challknob  ior 
Cause,  where  he  thereupon  peremptorily  challenges  the  juror,  and  ac- 
cepts a  jury  without  exhausting  his  peremptory  challenges. 

Court  is  Invested  with  Certain  Degree  of  Discretion  in  Selechon 
OF  Jurors,  which  is  to  be  exercised  by  seeing  that  proper  and  competent 
men  are  selected;  and  so  long  as  the  case  of  a  party  is  not  prejudiced  b; 
the  exercise  of  such  discretion,  he  cannot  complain. 

Court  may  Exclude  Juror  from  Panel  of  its  Own  Motion,  where, 
daring  the  impaneling,  he  exhibits  such  a  reckless  disregard  of  his 
duty  as  to  make  it  quite  evident  that  he  is  unfit  to  serve,  by  failing  to 
appear  in  court  at  the  time  to  which  it  had  adjourned,  and  remaining  in 
a  room  of  a  hotel,  where  he  was  found  after  an  hour's  search,  playing 
pool. 

C/ubt  may  Order  Juror  Discharged  and  Another  Juror  Drawn  in 
HIS  Stead,  where,  after  the  jury  had  been  selected  and  sworn,  and  be- 
fore any  further  proceedings  were  had  in  the  case,  it  was  ascertained 
that  such  juror  was  an  alien. 

Alien  is  not  Qualified  in  Any  Respect  to  Sit  upon  Jubt,  in  Michi- 
gan, and  a  jury  selected  and  sworn,  but  containing  an  alien,  consists  of 
only  eleven  jurors. 

Accused  is  not  in  Jeopardy,  until  a  jury  of  twelve  competent  men  are 
selected  and  sworn. 

Error  cannot  be  Assigned  on  a  ruling  to  which  ho  exception  was  taken. 

Opinions  of  Medical  Experts  Held  Adiossible,  under  the  circumstances, 
in  a  criminal  prosecution  for  murder,  as  to  how  death  occurred. 

Ck>NFBSSI0NS    ARE    PRESUMED    TO    HAVE    BEEN  VOLUNTARILY  MaDB,    in  the 

absence  of  all  evidence;  and  when  the  accused  alleges  the  contrary,  he 
is  called  upon  to  at  least  rebut  such  presumption. 
Evidence  of  Confejwions  is  Properly  Admitted,  where  there  was  noth- 
ing at  the  time  of  their  admission  to  show  that  they  were  not  voluntary; 
although  it  subsequently  appeared  that  a  prior  confession  had  been  (^- 


502  People  v.  Barker.  [Mich. 

tained  from  the  accused  by  such  arti^ce  and  deception  as  rendered 
evidence  thereof  incompetent;  but  had  the  facts  relating  to  the  prior 
confession  been  shown  before  the  subsequent  confessions  were  ofiFered,  it 
would  have  been  incumbent  upon  the  prosecution  to  prove  that  the  lat< 
ter  were  not  the  result  of  illegal  influence. 

Question  whether  Subsequent  Confession  was  Result  ot  Samb  Intflu- 
ENCE  Which  Induced  Previous  Confession  is  one  for  the  jury,  under 
proper  instructions  from  the  court,  where  a  subsequent  confession  is 
claimed  to  have  been  subject  to  the  influence  of  an  inducement  held  out 
or  exercised  to  obtain  a  previous  confession. 

It  is  Province  of  Court  to  Determine  whether  Confession  was  Vol- 
untary OR  NOT,  in  a  case  free  from  doubt,  before  admitting  or  rejecting 
the  same  as  evidence;  but  if  there  is  a  conflict  of  testimony,  or  room 
for  doubt,  the  court  should  submit  the  question  to  the  jury,  with  instruc- 
tions  that  if  they  were  satisfied  that  there  were  inducements,  they 
should  disregard  the  confession. 

Notes  and  Letters  concerning  Crime  are  Admissible  in  Evidencb 
WITHOUT  Formal  Proof  of  Handwriting,  where  a  witness  identifies 
them,  and  testifies  that  they  were  handed  to  him  by  one  of  the  accused 
to  be  delivered  to  the  other,  but  that  he  gave  them  to  the  sheriff  or  to 
his  wife. 

Witness,  Who  is  Sworn  and  Gives  Some  Evidence,  however  Formal, 
IS  TO  BE  Considered  Witness  for  All  Purposes,  and  ia  subject  to 
cross-examination  upon  all  matters  material  to  the  issue. 

Information  for  murder.    The  opinion  states  the  facts. 

Benjamin  F.  HecherU  S.  D.  Clay,  and  E.  S.  Eggleston,  for 
the  appellants. 

Moses  Taggart,  attorney-general,  and  Lester  A.  Tabor,  for  the 
people. 

By  Court,  Champlin,  J.  The  respondents  were  informed 
against  for  murder,  and  were  convicted  of  murder  in  the  sec- 
ond degree.  Marshall  G.  Barker  was  sentenced  to  imprison- 
ment for  life,  and  William  K.  Barker  for  the  term  of  twenty-five 
years. 

There  are  forty-nine  assignments  of  error,  which  may  be 
considered  under  three  heads;  namely,  those  relating  to  the 
selection  of  the  jury;  those  relating  to  the  introduction  of  ex- 
pert testimony;  and  those  relating  to  the  alleged  confessions 
of  respondents. 

1.  The  respondents  claimed  the  right  to  challenge  peremp- 
torily sixty  jurors,  which  was  acceded  to  by  the  court.  The 
qualification  of  the  jurors  challenged  was  tried  and  deter- 
mined in  open  court  by  the  circuit  judge,  who  rejected  some 
who  were  challenged  for  cause,  and  accepted  others. 

It  is  claimed  by  the  counsel  for  respondents  that  the  circuit 
judge  erred  in  accepting  certain  jurors  who  were  challenged 


April,  1886.]  People  v.  Barker.  503 

for  cause  of  bias,  or  of  entertaining  opinions  relative  to  the 
guilt  or  innocence  of  the  respondents  which  would  require 
evidence  to  remove.  The  constitution  of  this  state  provides 
that,  "  in  every  criminal  prosecution  the  accused  shall  have 
the  right  to  a  speedy  and  public  trial  by  an  impartial  jury": 
Art.  6,  sec.  28. 

It  was  said  in  Holt  v.  People,  13  Mich.  228:  "To  require  that 
jurors  shall  come  to  the  investigation  of  criminal  charges  with 
minds  entirely  unimpressed  by  what  they  may  have  heard  in 
regard  to  them,  or  entirely  without  information  concerning 
them,  would  be,  in  many  cases,  to  exclude  every  man  frona 
the  panel  who  was  fit  to  sit  as  a  juror.  With  the  present 
means  of  information,  the  facts  or  rumors  concerning  an  atro- 
cious crime  are,  in  a  very  few  hours,  or  days  at  farthest,  spread 
before  every  man  of  reading  and  intelligence  within  the  district 
from  which  jurors  are  to  be  drawn,  and  over  the  whole  coun- 
try, if  the  atrocity  be  especially  great.  And  there  are  some 
crimes  so  great  and  striking  that  even  the  most  ignorant  will 
have  information  and  impressions  in  regard  to  them;  and  the 
rule  as  stated,  applied  to  such  cases,  would  render  the  impan- 
eling of  a  jury  for  their  trial  impossible,  and  make  their  very 
enormity  a  complete  protection  from  punishment.  Without 
attempting  or  endeavoring  to  lay  down  rules  for  all  cases,  it 
is  sufficient  for  us  to  say  that  the  showing  in  the  present  case 
falls  far  short  of  establishing  cause  for  challenge.  The  juror 
is  shown  to  have  formed  a  partial  opinion,  but  not  a  positive 
opinion.  This  opinion  was  not  based  upon  anything  which 
be  had  himself  witnessed,  or  from  information  derived  from 
those  who  claimed  to  know  the  facts,  but  upon  street  rumors. 
Now,  when  a  person  says  that  he  has  formed,  from  street 
rumors,  a  partial  but  not  a  positive  opinion,  we  think  he  is  to 
be  understood  as  speaking  only  of  those  impressions  which 
every  one  receives  insensibly  when  a  charge  of  crime  is  made, 
but  which,  so  far  from  amounting  to  settled  conviction,  do  not 
in  the  least  preclude  an  impartial  examination  of  the  facta, 
when  afterwards  presented  in  the  form  of  legal  testimony." 

This  case  was  cited  with  approval  in  Stephens  v.  People,  38 
Mich.  739.  The  opinion  in  this  case  was  written  by  the  same 
learned  judge  who  wrote  the  opinion  in  Holt  v.  People,  supra,  and 
in  this  case  he  said:  "The  question  on  this  record  is,  whether 
that  jury  can  be  an  impartial  one  whose  members  are  already 
80  impressed  with  the  guilt  of  the  accused  that  evidence  would 
be  required  to  overcome  such  impressions.    It  seems  to  us  that 


604  People  v.  Barker.  [Mich. 

this  question  needs  only  to  be  stated, — it  calls  for  no  discus- 
sion. This  woman,  instead  of  entering  upon  her  trial  sup- 
ported by  a  presumption  of  innocence,  was,  in  the  minds  of 
the  jury  when  they  were  impaneled,  condemned  already;  and 
by  their  own  statements  under  oath,  it  is  manifest  that  this 
condemnation  would  stand  against  her  until  removed  by  evi- 
dence. Under  such  circumstances,  it  is  idle  to  inquire  of 
jurors  whether  or  not  they  can  return  just  and  impartial  ver- 
dicts; the  more  clear  and  positive  were  their  previous  impres- 
sions of  guilt,  the  more  certain  may  they  be  that  they  can  act 
impartially  in  condemning  the  guilty  party.  They  go  into  the 
jury-box  in  a  state  of  mind  that  is  well  calculated  to  give  a 
color  of  guilt  to  all  the  evidence;  and  if  the  accused  escapes 
conviction,  it  will  not  be  because  the  evidence  has  established 
guilt  beyond  a  reasonable  doubt,  but  because  an  accused  party, 
condemned  in  advance,  and  called  upon  to  exculpate  himself 
before  a  prejudiced  tribunal,  has  succeeded  in  doing  so." 

The  subject  came  under  review  again  in  Ulrich  v.  People, 
39  Mich.  246,  and  the  court  said  "  that  it  appeared  that  one 
of  the  jurors  had  formed  and  retained  an  opinion  which  evi- 
dence would  be  required  to  remove.  It  appeared  upon  ex- 
amination of  this  juror  that  he  had  read  a  little  about  the 
case, — in  all,  about  twenty  lines;  that  from  this  he  had 
formed  an  opinion,  not  of  a  fixed  character,  but  which  would 
require  evidence  to  remove;  and  he  believed  that  he  would  be 
able  to  render  an  impartial  verdict  according  to  the  evidence 
submitted  upon  the  trial.  What  the  opinion  was,  whether 
favorable  or  unfavorable  to  the  accused,  did  not  appear.  The 
showing  as  to  the  incompetency  of  this  juror  was  insuflScient. 
The  opinion  he  had  formed  was  not  based  upon  anything  he 
had  himself  witnessed,  or  from  information  derived  from  any 
one  who  claimed  to  know  the  facts,  but  from  reading  a  few 
lines  in  a  newspaper,  which  could  not  have  given  a  very  full 
account  of  the  transaction,  or  made  a  very  deep  or  lasting 
impression  upon  his  mind,  or  one  that  would  preclude  him 
from  an  impartial  examination  of  the  facts  as  presented  dur- 
ing the  trial." 

From  what  has  been  said  by  this  court  in  the  cases  cited, 
it  appears  that  the  opinion  entertained  by  a  juror  which  dis- 
qualifies him  is  an  opinion  of  that  fixed  character  which 
repels  the  presumption  of  innocence  in  a  criminal  case,  and 
in  whose  mind  the  accused  stands  condemned  already.  It  is 
not  because  it  will  require  some  evidence  to  remove  impres- 


April,  1886.]  People  v.  Barker.  505 

Bions,  or  opinions  formed  from  rumors,  newspaper  statements, 
or  from  whatever  other  sources  these  impressions  may  have 
been  received,  that  a  juror  is  disqualified.  The  sources  of  in- 
formation are  important  in  determining  the  effect  likely  to 
have  been  produced  upon  the  mind  of  the  juror,  and  the  influ- 
ence likely  to  be  exerted  upon  his  judgment;  but  the  human 
mind  is  so  constituted  that  impressions  made  upon  it  which 
lead  towards  certain  conclusions,  whether  reached  or  not,  will 
always  require  other  impressions  to  be  made  to  eradicate  the 
former  ones,  or  to  lead  towards  different  conclusions, — in  other 
words,  will  require  some  evidence  to  remove  them.  We  all 
are  conscious  that  notions  entertained  by  us  are  not  all  of  the 
same  stable  character,  and  range  all  the  way  from  conviction, 
which  is  the  ultimate  effect  of  ratiocination,  to  the  passing 
comment  or  idle  words  that  leave  no  permanent  impression. 

The  question,  therefore,  must  be  always  one  of  degree,  and 
the  trier  is  called  upon  to  determine  whether  the  opinion  en- 
tertained by  the  juror  is  of  that  fixed  or  permanent  character 
which  disqualifies  him  from  coming  to  the  case  in  a  fair,  can- 
did, and  impartial  frame  of  mind,  which  is  unaffected  with 
prejudice  or  favor  to  either  party. 

Each  of  the  jurors  challenged  stated,  under  oath,  that  from 
what  they  had  read  in  the  newspapers,  and  talk  in  the  neigh- 
borhood, and  rumors,  they  had  formed  opinions  which  would 
require  evidence  to  remove.  One  said  it  would  take  good  evi- 
dence,—  decided  evidence.  Two  of  them  had  formed  their 
opinions  from  what  they  had  read  in  the  newspapers,  purport- 
ing to  be  a  confession  made  by  the  respondents,  and  that  it 
would^  require  evidence  to  change  such  opinions.  It  seems  to 
me  that  the  evidence  shows  that  these  jurors  had  such  fixed 
opinions  as  disqualified  them  from  sitting  as  jurors.  The 
learned  circuit  judge  thought  otherwise,  and  overruled  tlio 
challenges  to  the  favor.  They  were  in  each  instance  chal- 
lenged by  the  respondents  peremptorily,  and  rejected.  The 
question  now  is,  Were  the  respondents  prejudiced  by  the  rul- 
ings of  the  court?  It  appears  from  the  record  that  after  the 
jury  were  finally  impaneled  and  sworn,  the  respondents  had 
twenty-two  peremptory  challenges  remaining  unused.  It  is  not 
perceived  how  they  were  injured,  or  in  any  manner  prejudiced, 
by  being  compelled  to  challenge  these  jurors  peremptorily.  If 
the  law  was  that  the  respondent  could  exercise  the  right  of 
peremptorily  challenging  jurors  without  limit,  until  he  was 
satisfied  with  the  jury,  and  the  court  should  overrule  his  chal- 


50G  People  v.  Barker.  [Mich. 

lenges  for  cause,  and  he  should  then  reject  the  jurors  peremp- 
torily, no  harm  could  possibly  come  to  him  by  such  erroneous 
ruling.  Neither  can  it  work  harm  where,  in  pursuing  such 
course,  his  right  of  challenge  is  not  exhausted  before  he  secures 
a  jury  with  whom  he  is  satisfied  to  be  tried.  The  point  was 
directly  ruled  in  SuUings  v.  Shakespeare^  46  Mich.  408;  41 
Am.  Rep.  166. 

During  the  progress  of  the  cause,  and  before  a  full  panel 
had  been  secured,  a  juror  had  been  accepted  as  one  of  the 
panel,  and  the  court  adjourned  at  the  close  of  one  day  until 
nine  o'clock  the  next  day.  Upon  assembling  at  the  appointed 
time,  this  juror  did  not  appear.  After  a  delay  of  nearly  an 
hour,  and  search,  he  was  found  in  a  room  of  the  hotel,  playing 
pool.  The  court  fined  the  juryman  ten  dollars  for  contempt 
of  court  for  not  being  present  when  the  court  opened,  and  ex- 
cused him  from  the  panel,  and  ordered  him  to  step  aside. 
His  place  was  afterwards  filled  by  another  juror.  The  re- 
spondents excepted  to  that  part  of  the  judge's  order  which 
excused  the  juror  from  serving. 

The  circuit  judge  is  invested  with  a  certain  degree  of  dis- 
cretion in  the  selection  of  jurors  for  a  panel.  Such  discretion 
is  to  be  exercised  in  seeing  that  proper  and  competent  men 
are  selected;  and  so  long  as  the  case  of  the  parties  is  not 
prejudiced  by  the  exercise  of  such  discretion,  they  cannot 
complain. 

In  the  case  of  Atlas  Mining  Co.  v.  Johnston^  23  Mich.  36, 
neither  party  objected  to  the  jury  as  finally  obtained,  yet  the 
court  set  aside  two  jurors  without  any  challenge,  because  from 
their  examination  they  did  not  seem  to  be  entirely  impartial; 
ind  it  was  said  that  "it  would  be  ground  of  error  for  the  court 
to  admit  a  juror  who  is  challenged  and  ought  to  have  been 
rejected.  It  is  no  ground  of  error  to  be  more  cautious  and 
strict  in  securing  an  impartial  jury  than  the  law  actually  re- 
quired; and  that  for  this  purpose  the  court  may  very  properly 
reject  a  juror  on  a  ground  which  would  not  be  strictly  suffi- 
cient to  sustain  a  challenge  for  cause,  or  in  other  words,  when 
the  refusal  to  sustain  the  challenge  would  not  constitute  error." 

In  the  case  of  People  v.  Carrier,  46  Mich.  442,  a  juror  was 
excused  by  the  judge  for  the  reason  that  he  was  to  be  a  witness 
in  the  next  case  to  be  tried,  and  this  court  said:  "Before  a 
juror  has  been  sworn  in  the  case,  the  judge  may  excuse  him 
for  any  reason  personal  to  the  juror  which  seems  to  the  judge 
sufficient." 


April,  1886. J  People  v.  Barkeb.  507 

In  Torrent  v.  Yager,  52  Mich.  506,  the  judge  excluded  a  juror 
against  objection,  and  without  challenge,  because  of  his  unfit- 
ness in  consequence  of  the  excessive  use  of  intoxicating  liquor 
while  acting  as  a  juror.  This  was  held  not  to  be  error,  the 
court  saying:  "  It  is  the  duty  of  the  court  to  carefully  guard 
and  protect  the  rights  of  parties  in  the  selection  of  jurymen, 
and  see  to  it  that  no  person  who  is  incompetent  is  allowed  to 
sit  in  the  case." 

In  the  case  under  consideration,  the  juror  had  exhibited 
such  reckless  disregard  of  his  duty  as  a  juror  as  to  make  it 
quite  evident  that  he  was  unfit  to  serve  upon  the  panel,  and 
the  judge  was  guilty  of  no  impropriety  in  excluding  him 
therefrom. 

After  the  jury  had  been  selected  and  sworn,  and  before  any 
further  proceedings  were  had  in  the  case,  it  was  ascertained 
^hat  one  of  the  members  of  the  panel  was  an  alien.  The  court 
(thereupon  ordered  him  to  stand  aside  and  be  discharged  from 
Khe  panel,  and  that  another  juror  be  drawn  in  his  stead;  and 
Ihat  the  respondents  be  allowed  to  challenge  the  remaining 
eleven,  either  for  cause  or  peremptorily,  if  they  desired  to  do 
BO.  The  respondents  excepted.  Another  juror  was  drawn  and 
selected,  and  the  jury  were  sworn,  and  the  case  proceeded.  An 
alien  is  not  qualified  in  any  respect  to  sit  upon  a  jury  in  this 
state.  The  jury,  when  sworn,  consisted  of  only  eleven  jurors. 
The  respondents  were  not  in  jeopardy  until  a  jury  of  twelve 
men  should  be  selected  and  sworn.  The  action  of  the  circuit 
judge  was  correct,  and  supported  both  by  reason  and  authority, 
many  of  which  are  cited  in  the  brief  furnished  us  by  the 
counsel  for  the  people. 

Error  is  also  assigned  upon  what  transpired  during  the 
selection  of  the  jury,  with  reference  to  investigating  the  truth 
of  a  rumor  that  one  thousand  dollars  had  been  put  into  the 
bank  at  Paw  Paw,  with  which  to  bribe  the  jury.  The  matter 
was  fully  probed,  and  turned  out  to  be  entirely  without  founda- 
tion; and  while  I  do  not  approve  the  wisdom  or  propriety  of 
the  time  and  manner  of  the  investigation,  I  do  not  see  that  the 
respondents  could  possibly  be  prejudiced  in  the  minds  of  the 
jury  by  what  transpired.  It  turned  out  to  be  a  silly,  idle 
rumor,  without  foundation,  and  without  tlie  semblance  of  tes- 
timony to  support  or  give  currency  to  it;  and  the  result  of  tho 
investigation  was  a  complete  vindication  of  the  respondents 
from  any  charge  of  bribery,  or  attempted  bribery,  or  corrup- 
tion of  jurors.    Moreover,  no  exceptions  were  taken  by  the 


508  People  v.  Barker.  [Mich. 

respondents,  and  for  that  reason  the  errors  are  not  properly 
assigned  upon  this  record. 

2.  Dr.  Josiah  Andrews  was  a  practicing  physician  and  sur- 
geon. He  was  present  at  the  post-mortem  examination  of  the 
body  which  had  been  found  in  Max  Lake.  He  stated  the  ex- 
amination which  he  made  of  the  body,  and  described  it  as 
bloated  considerably,  and  livid,  purple,  dark  purple, — partic- 
ularly the  upper  part  of  the  body  more  than  the  lower  part; 
made  examination  to  ascertain  cause  of  death,  if  he  could  do 
60,  but  did  not  make  a  very  extended  examination  of  the 
body,  from  the  fact  that  it  was  very  decomposed,  very  offen- 
sive, and  even  dangerous  to  work  over;  examined  the  lungs 
and  heart  in  particular,  found  the  lungs  somewhat  collapsed, 
not  very  much  filled  out  with  air.  Both  cavities  of  the  heart 
were  entirely  empty  of  blood, — no  blood  in  them, — nor  in  the 
first  portion  of  the  vessels, — the  aorta  and  other  large  vessels. 
He  described  the  appearance  of  other  parts  of  the  body,  and 
the  condition  of  the  heart,  and  also  the  usual  condition  of  the 
heart  where  death  ensued  from  drowning.  The  prosecuting 
attorney  asked  the  witness  the  following  question:  "Doctor, 
from  the  entire  examination  that  you  made  of  the  heart,  lungs, 
eyes,  mouth,  neck,  and  general  appearance,  together  with  the 
mutilation  that  you  have  testified  to,  did  you  come  to  any 
conclusion  as  to  how  death  occurred, — by  drowning  or  by 
other  means?" 

This  was  objected  to  as  incompetent.  The  court  permitted 
the  question  to  be  asked,  and  the  defendant  excepted.  It  is 
insisted  that  the  witness  had  not  made  an  examination  which 
was  sufficient  to  base  an  opinion  upon.  I  think  the  witness 
had  shown  sufficient  examination  and  knowledge  to  base  an 
intelligent  answer  upon  to  the  question.  The  witness  an- 
swered: "Yes;  my  opinion  was  that  the  man  did  n't  come  to 
his  death  by  drowning, — that  he  was  dead  before  he  was  put 
into  the  water." 

Counsel  for  respondent  then  moved  to  strike  this  answer 
out.     This  motion  was  properly  overruled  by  the  court. 

Dr.  Hatheway  was  a  practicing  physician  and  surgeon  of 
thirty-three  years'  practice.  He  made  an  autopsy  upon  the 
body  of  a  man  found  in  Max  Lake  on  August  1st.  He  exam- 
ined the  external  appearance  of  the  body,  and  laid  ofif  the 
scalp.  He  found  no  wound  upon  the  body,  except  on  the 
scrotum.  A  portion  of  that,  particularly  on  the  right  side, 
hung  like  a  fringe,  and  the  left  side  was  not  so  defined  as  a 


April,  188G.]  People  v.  Barkeb.  509 

fringe,  but  a  cut  over  to  the  left, — a  fringe  of  four  or  five 
pieces  that  hung,  the  skin  from  an  inch  to  an  inch  and  a 
quarter  long.  He  made  an  incision  with  his  knife  to  find  the 
testicles;  but  there  were  none.  The  body  was  swollen — dis- 
tended—  very  much.  The  face  and  neck  were  as  black  as  an 
African's.  He  also  made  another  examination  on  the  follow- 
ing Tuesday,  being  the  one  testified  to  by  the  witness  Dr.  An- 
drews. Witness  was  then  asked  if,  from  the  examination  he 
made,  he  was  able  to  come  to  any  conclusion,  or  form  any 
opinion  as  to  whether  death  occurred  from  drowning.  The 
respondents'  counsel  objected  on  the  ground  of  incompetency. 
The  witness  stated  that  it  was  not  a  scientific  opinion,  and  the 
question  was  then  excluded  by  the  court. 

On  the  examination  of  witness,  the  following  questions  were 
asked  by  the  prosecuting  attorney,  viz.:  — 

"  Q.  Now,  Doctor,  suppose  there  had  been  bruises,  without 
breaking  the  skin,  upon  the  chest,  previous  to  death,  and  death 
occurred  from  strangulation, — I  will  say  by  a  person  putting 
their  knees  upon  the  stomach  or  chest, — would  that  have  a 
tendency  to  hurry  decomposition? 

"  Q.  Suppose  that  there  had  been  bruises  on  the  chest  pre- 
vious to  death,  and  death  had  occurred  from  strangulation, 
what  would  you  say  as  Id  whether  decomposition  would  set  in 
earlier  than  it  would  if  there  had  been  no  bruises  upon  the 
chest? 

"Q.  How  quick? 

"  Q.  Well,  now,  then,  after  the  decomposition  had  set  in  to 
the  extent  it  had  on  this  body  at  the  time  you  made  the  ex- 
amination, and  death  occurred  by  strangulation,  without  a 
fracture  of  the  cartilage  of  the  larynx,  what  would  you  say 
then  about  finding  evidence  of  violence? 

"  Q.  Suppose  that  decomposition  had  set  in  as  far  as  it  had 
on  this  body  at  the  time  you  made  the  examination,  and  pro- 
viding death  had  occurred  by  strangulation,  without  fracture 
of  the  cartilage  of  the  larynx,  what  would  you  say  then  as  to 
finding  evidence  of  violence? 

"  Q.  Suppose  a  person  was  killed,  strangled,  and  thrown  into 
the  water,  would  the  body  rise  sooner  or  later  than  it  would  in 
case  of  drowning? 

"  Q.  Suppose  that  death  occurred  from  strangulation,  and 
the  eyes  and  tongue  protruded,  and  the  body  thrown  into  the 
water,  would  the  eyes  and  tongue  remain  in  the  same  condi- 
tion, or  would  they  protrude  farther?" 


610  People  v.  Barker.  [Mich. 

Error  is  assigned  upon  the  overruling  of  the  objection  of 
the  respondents'  counsel  to  each  of  these  questions.  The 
record  shows  that  question  No.  1  was  not  allowed  at  all,  and 
no  ruling  made  upon  it  in  that  form.  The  objection  to  ques- 
tion numbered  four  was  sustained.  The  fifth  question  was 
answered  that  "we  couldn't  tell;  that  is,  presuming  decompo- 
sition had  gone  to  this  extent."  To  the  sixth  question  the 
witness  answered:  "  It  would  depend  wholly  upon  the  condi- 
tion,—  it  would  depend  wholly  as  to  the  length  of  time  that 
had  elapsed  since  death  had  taken  place  before  it  was  thrown 
into  the  water."  Whether  the  ruling  was  right  or  wrong  as  to 
the  questions  numbered  five  and  six,  the  respondents  were  not 
prejudiced  by  the  admission  of  the  answers  thereto.  They 
proved  nothing.  The  other  questions  were  proper  under  the 
circumstances  disclosed  in  the  record.  The  homicide  was 
claimed  to  have  been  committed  on  the  twenty-eighth  day  of 
July,  1885,  and  the  body  of  the  murdered  man  was  claimed  to 
have  been  found  in  Max  Lake  on  the  first  day  of  August,  1885, 
in  an  advanced  state  of  decomposition.  A  question  was  made 
as  to  the  identity  of  the  body,  and  this  testimony  was  offered 
to  explain  its  condition, — the  rapid  rate  of  putrefaction;  and 
also  to  show  that  life  was  extinct  before  the  body  was  thrown 
into  the  lake.  The  testimony  is  not  all  returned;  but  it  ap- 
pears that  the  prosecution  claimed  that  the  homicide  was  com- 
mitted by  means  of  strangulation,  and  that  there  was  evidence 
which  tended  to  prove  that  theory.  It  was  in  this  view  of  the 
case  that  the  court  permitted  the  questions  above  mentioned 
to  be  put,  and  we  are  not  able  to  say  that  his  rulings  were 
erroneous. 

Assignments  of  error  from  the  thirty-second  to  thirty-ninth, 
inclusive,  refer  to  the  admissibility  of  testimony  relative  to  a 
substance,  supposed  to  be  testicles,  found  upon  a  log  about 
three  hours  after  the  body  was  found,  which  lay  across  the 
road  leading  through  the  woods  from  Bloomingdale  to  Max 
Lake.  There  was  no  error  in  the  rulings  of  the  court  with  re- 
spect to  the  admission  of  this  testimony.  The  surgeons  who 
examined  it  testified  positively  that  it  was  the  substance  called 
"testicles";  but  they  could  not  swear  that  they  were  the  tes- 
ticles of  a  human  being,  and  that  they  knew  of  no  way  of  dis- 
tinguishing the  testicle  of  the  human  species  from  that  of 
other  animals  by  its  anatomical  structure.  In  connection 
with  the  evidence  of  the  mutilated  condition  of  the  body  found 
in  the  lake,  the  testimony  was  admissible. 


April,  1886.]  People  v.  Barker.  511 

3.  The  fortieth,  forty-first,  forty-sixth,  and  forty-seventh 
assignments  of  error  relate  to  the  testimony  of  Orange  Cross. 
This  witness  was  an  inmate  of  the  county  jail  in  which  re- 
spondents were  confined  after  their  arrest  on  the  charge  of 
murder,  and  was  placed  upon  the  witness-stand  by  the  people, 
and  testified  that  he  was  somewhat  acquainted  with  the  re- 
spondents; that  he  became  acquainted  with  them  in  jail,  and 
while  there  he  had  a  conversation  with  Marshall  G.  Barker, 
he  should  judge  about  the  26th  of  August.  He  was  then  asked 
to  state  what  conversation  he  had  with  him. 

This  question  was  objected  to,  because  there  were  certain 
alleged  confessions  obtained  from  the  respondents  by  detec- 
tives, under  the  authority  of  the  county;  and  that  any  admis- 
sions or  conversations  following  that  detective  work  were  not 
admissible,  unless  shown  by  the  party  ofiering  them  that  they 
were  obtained  fairly,  and  without  any  fraud  or  undue  influence, 
and  that  the  influence  which  had  been  brought  to  bear  upon 
the  respondents,  by  which  the  confessions  were  obtained,  had 
passed  entirely  out  of  their  minds.  The  circuit  judge  then 
stated  to  counsel  that  there  was  no  evidence  before  the  jury  at 
that  time  that  the  respondents  ever  confessed,  or  that  any  in- 
fluences, improper  or  otherwise,  were  brought  to  bear  upon 
them;  and  that  respondents'  counsel  had  the  right  to  examine 
and  find  out  whether  anything  of  the  kind  was  done,  when  it 
would  be  for  the  court  to  determine  whether  it  would  be  ad- 
missible or  not.  Counsel  for  respondents  suggested  that  it 
was  the  duty  of  the  court  to  see  that  confessions  were  made 
voluntarily,  and  without  improper  influence;  but  the  court  re- 
plied: "I  do  not  know,  as  a  court,  that  any  confessions  were 
made  at  all.  I  have  no  evidence  of  it.  There  is  no  evidence 
before  the  court  that  any  such  confessions  were  made." 

The  prosecutor  announced  that  he  proposed,  by  the  ques- 
tion asked,  to  prove  an  admission  of  the  respondents;  but 
whether  it  was  obtained  from  detective  work  he  could  not  say 
at  that  time.  Thereupon  the  court  said  to  respondents'  coun- 
sel: "You  may  examine  the  witness  as  fully  as  you  desire 
before  he  answers  any  questions,  to  see  what  influence,  if  any, 
surrounded  the  respondents  at  the  time  this  man  talked  with 
them." 

Exception  was  taken  to  this  ruling. 

Confessions  voluntarily  made,  not  induced  by  threats,  or  by 
a  promise  or  hope  of  favor,  are  admissible  in  evidence  in 
criminal  cases.     They  are  usually  divided  into  three  classes: 


B12  People  v.  Barker.  [Micb. 

1.  Confessions  made  in  open  court,  under  a  plea  of  guilty, 
which  are  cdnclusive,  and  render  any  proof  unnecessary;  2. 
The  next  highest  kind  are  those  made  before  a  magistrate;  and 
3.  Those  made  to  any  other  person,  which  are  the  lowest 
grade,  and  require  proof  of  corroborating  circumstances  to 
sustain  them. 

The  presumption  is,  that  confessions  have  been  freely  made 
until  the  contrary  appears:  1  Chit.  Crim.  Law,  *571;  WilUams^s 
Case,  1  City  H.  Rec.  149;  Roscoe's  Crim.  Ev.  43;  Common- 
wealth V.  Culver,  126  Mass.  464. 

The  practice  to  be  pursued  in  the  introduction  of  confessions 
in  evidence  has  not  always  been  uniform.  In  Phillips  on 
Evidence,  it  is  said:  "  For  the  purpose  of  introducing  a  confes- 
sion in  evidence,  it  is  unnecessary,  in  general,  to  do  more  than 
negative  any  promise  or  inducement  held  out  by  the  person 
to  whom  the  confession  was  made":   1  Phill.  Ev.  *551. 

Mr.  Chitty,  in  his  work  on  criminal  law,  at  page  *572,  says: 
"The  practice,  however,  at  present  is  for  the  prosecutor'q 
counsel,  on  his  examination  of  his  own  evidence  in  chief,  to 
inquire  of  the  witnesses  all  the  facts,  so  as  to  satisfy  the  jury 
that  the  confession  was  voluntarily  made  and  duly  taken." 

The  question  of  the  admissibility  of  the  evidence  is  for  the 
court,  and  not  the  jury,  and  is  the  subject  of  a  preliminary 
inquiry:  1  Phill.  Ev.  *543;  1  Greenl.  Ev.,  sec.  219. 

Unless  it  appears  from  the  testimony  of  the  witness,  or 
other  evidence  in  the  case,  that  the  confession  was  not  volun- 
tary, or  was  made  through  the  influence  of  fear  or  hope;  or 
unless  the  evidence  ofifered  is  objected  to  upon  the  ground  that 
the  confessions  were  made  in  consequence  of  fear,  or  of  favors 
held  out  to  the  prisoners,  —  no  preliminary  examination  into 
the  facts  and  circumstances  is  called  for.  If,  however,  the 
contrary  does  appear,  or  the  objection  is  made,  then  the  pre- 
liminary examination  must  be  had.  In  this  case,  when  the 
evidence  was  ofifered  by  the  people,  it  was  objected  to  as 
being  incompetent  as  having  been  made  under  influences 
which  deprived  it  of  the  character  of  a  free  and  voluntary  con- 
fession. For  all  that  appeared  to  the  court  at  the  time  it  was 
ofiFered,  it  was  prima  facie  competent.  The  respondents'  coun- 
sel contended  that  it  was  incompetent  by  reason  of  certain  ex- 
trinsic facts.  It  was  for  the  respondents  to  establish  those 
facts,  and  for  the  circuit  judge  to  ascertain  before  admitting 
the  evidence.  We  think  the  correct  rule  is  laid  down  by  the 
supreme  court  of  Massachusetts,  in  the  case  of  Commonwealth 


April,  1886.]  People  r.  Barkee.  513 

V.  Culver,  126  Maes.  464,  where  the  point  was  directly  passed 
upon,  in  which  the  court  say:  "It  appears  by  the  bill  of  ex- 
ceptions that  when  the  confessions  of  the  defendants  were 
offered  in  evidence,  they  objected  to  such  confessions  upon  the 
ground  'that  they  were  made  in  consequence  of  offers  of  favor 
made  to  the  defendants  by  the  officer  who  arrested  the 
defendants,  and  had  them  in  custody.'  If  this  were  true,  and 
the  defendants  could  establish  the  fact,  the  confessions  were 
incompetent  evidence.  It  was  the  duty  of  the  presiding  judge 
to  determine  that  fact,  upon  hearing  all  competent  evidence 
upon  it  which  was  tendered  by  either  party.  In  the  absence 
of  all  evidence,  the  presumption  is  that  a  confession  is  volun- 
tary; and  when  the  party  confessing  objects  that  confessions 
are  not  voluntary,  he  is  called  upon  to  show  at  least  enough  to 
rebut  such  presumption." 

As  the  case  stood,  the  burden  of  rebutting  this  presumption 
was  upon  the  respondents,  and  the  court  did  not  err  in  so 
holding. 

The  respondents  then  examined  the  witness  Cross,  and  also 
the  prosecuting  attorney  and  sheriff,  whose  testimony  did  not 
show  that  any  confessions  were  obtained  from  respondents  by 
means  of  threats,  or  by  promises  of  favor,  or  by  holding  out 
to  them  the  flattery  of  hope;  but  did  show,  conclusively,  that 
artifice  and  deception  were  used  to  obtain  a  confession  from 
respondents.  This  was  accomplished  through  a  detective 
agency  of  Chicago,  by  which  a  detective,  by  artifice  and  de- 
ception, personated  and  led  respondents  to  believe  that  he 
was  a  lawyer  of  celebrity  from  Chicago;  and  in  the  confidence 
of  that  supposed  relation  obtained  from  them  a  statement  of 
their  connection  with  the  crime. 

Confidential  communications  made  in  reliance  upon  the 
supposed  relation  of  attorney  and  client,  whether  the  party 
assuming  to  act  as  such  is  an  attorney  or  not,  are  excluded 
upon  the  plainest  principles  of  justice.  Indeed,  the  confes- 
sions thus  obtained,  when  offered  in  evidence,  were  promptly 
excluded  by  the  court.  The  confessions  sought  to  be  intro- 
duced were  statements  to  or  in  the  hearing  of  other  parties 
having  no  connection  whatever  with  the  pretended  lawyer, 
and  upon  other  and  different  occasions.  There  was  no  testi- 
mony showing  what  statements  the  detective  made  to  respond- 
ents to  induce  them  to  confide  in  him,  or  to  make  any 
confessions  to  him,  other  than  that  of  his  being  an  attorney 
from  Chicago,  at  the  time  the  circuit  judge  decided  to  admit 

>  ¥.  ST.  Rep.,  Vou  L  —  33 


514  People  v.  Barker.  [Mich. 

the  testimony  of  the  "witnesses  relative  to  the  alleged  con- 
fessions. 

We  are  of  opinion  that  at  the  time  the  ruling  was  made  by 
the  circuit  judge  admitting  the  testimony  of  the  witnesses 
Cross  and  De  Puy,  relative  to  the  confessions  made  by  re- 
spondents, such  ruling  was  correct.  Later  in  the  case,  com- 
munications written  by  one  respondent  to  the  other,  and 
intercepted,  or  not  delivered,  were  identified,  and  introduced 
in  evidence;  and  from  some  of  these  it  appeared  that  the  de- 
tective who  had  assumed  the  role  of  the  Chicago  attorney  had 
advised  one  of  them  to  say  that  he  committed  the  murder  in 
self-defense,  and  the  brother  was  callad  in  afterwards  to  assist 
in  secreting  the  body,  and  in  that  way  he  would  clear  them 
both,  and  especially  the  brother,  who  aided  and  abetted  after 
the  act.  Had  these  facts  appeared  prior  to  the  introduction 
of  the  evidence  relative  to  the  confessions,  it  would  have  been 
incumbent  upon  the  prosecution  to  prove  that  the  confessions 
offered  were  not  the  result  of  the  influences  exerted  by  the 
detective:  Roscoe's  Grim.  Ev.  43;  2  Russ.  Cr.  842;  1  Whart. 
Am.  Crim.  Law,  sec.  694.  And  this  might  have  been  done  by 
showing  that  the  particulars  of  the  crime,  as  stated  to  these 
witnesses,  were  different  from  those  disclosed  to  the  detective, 
and  could  not  have  been  under  the  influence  of  his  promises; 
for  instead  of  making  one  brother  accessary  after  the  fact,  the 
story  of  the  killing,  as  narrated  by  these  witnesses,  made  both 
of  respondents  principals  in  the  transaction.  In  cases,  how- 
ever, where  a  subsequent  confession  is  made,  and  it  is  claimed 
that  it  is  subject  to  the  objection  that  the  party  making  it  is 
under  the  influence  of  an  inducement  held  out  or  exercised  to 
obtain  a  previous  confession,  which  for  that  reason  is  not  ad- 
missible in  evidence,  the  question  whether  such  subsequent 
confession  was  the  result  of  the  same  influence  which  induced 
the  one  previously  made  is  one  for  the  jury,  under  proper  in- 
structions from  the  court:  Commonwealth  v.  Cullen,  111  Mass. 
435;  Commonwealth  v.  Smithy  119  Id.  305;  Commonwealth  v. 
Piper,  120  Id.  185;  State  v.  Potter,  18  Conn.  166;  Sherring- 
ton's Case^  2  Lew.  C.  C.  123;  Rex  v.  Cooper,  5  Car.  &  P.  535; 
Commonwealth  v.  Taylor,  5  Cush.  605. 

In  Commonwealth  v.  Piper,  supra,  the  court  says:  "  When  a 
confession  is  offered  in  a  criminal  case,  and  the  defendant  ob- 
jects that  he  was  induced  to  make  it  by  threats  or  promises,  it 
necessarily  devolves  upon  the  court  to  determine  the  prelimi- 
nary question  whether  such  inducements  were  shown;  and  the 


April,  1886.]  People  v.  Barker.  515 

finding  of  the  court  upon  this  question  cannot  be  revised  upon 
a  bill  of  exceptions,  unless  it  involves  some  ruling  in  matter  of 
law,  or  the  whole  evidence  is  reported  with  a  view  of  submit- 
ting its  suflficiency  to  the  appellate  court.  If  the  presiding 
judge  is  satisfied  that  there  were  such  inducements,  the  con- 
fession is  to  be  rejected;  if  he  is  not  satisfied,  the  evidence  is 
admitted.  But  if  there  is  any  conflict  of  testimony,  or  room 
for  doubt,  the  court  will  submit  this  question  to  the  jury,  with 
instructions  that  if  they  are  satisfied  that  there  were  such  in- 
ducements, they  shall  disregard  and  reject  the  confession." 

This  seems  to  place  the  matter  upon  the  proper  foundation, 
and  properly  guards  and  protects  the  rights  of  the  accused. 

In  this  case,  in  an  able  charge  which  covered  all  the  points 
in  controversy  in  the  case,  and  to  which  no  exception  was 
taken,  the  court  instructed  the  jury  upon  the  subject  of  the 
confessions  as  follows:  "  Testimony  has  been  given  before  you 
in  this  case  of  certain  alleged  confessions  and  admissions 
claimed  to  have  been  made  by  respondents.  It  was  the  duty 
of  the  court  to  determine,  in  the  first  place,  whether  such 
alleged  confessions  were  so  far  voluntary  as  to  admit  them  in 
evidence  for  your  consideration.  The  court  did  not,  however, 
thereby  determine  them  to  be  voluntary,  and  whether  they 
were  voluntary  or  not  is  a  matter  to  be  determined  by  you 
alone,  without  reference  to  their  admission.  If  you  find  them 
to  have  been  made  voluntarily,  you  will  consider  them  with  all 
the  other  evidence  in  the  case;  but  if  you  find  that  they  were 
not  voluntary,  or  if  you  find  that  they  were  made  because  of 
hopes  held  out  to  them,  or  because  of  fear,  or  because  of  in- 
ducements made  to  them  to  confess,  you  will  reject  them. 
Under  such  circumstances  no  reliance  could  be  placed  upon 
admissions  of  guilt,  for  the  obvious  reason  that  it  could  not  be 
said  that  they  were  made  because  they  were  true,  but  because, 
whether  true  or  false,  the  accused  was  led  to  believe  it  for  his 
best  interest  to  make  them.  And  what  I  say  upon  this  branch 
of  the  case  I  mean  to  apply  also  to  the  alleged  written  state- 
ments. 

"  I  further  say  to  you  that  the  confessions  of  a  prisoner  out  of 
court  are  a  doubtful  species  of  evidence,  and  should  be  acted 
upon  with  great  caution,  and  unless  they  are  supported  by 
some  other  evidence  tending  to  show  that  the  prisoners  com- 
mitted the  crime,  they  are  rarely  sufficient  to  warrant  a  con- 
viction. The  credit  and  weight  to  be  given  to  confessions 
depend  very  much  upon  what  the  confessions  are.     If  the 


516  People  v.  Barker.  [Mich. 

crime  itself  as  charged  is  proved  by  other  testimony,  and  it  is 
also  proved  that  the  defendants  were  so  situated  that  they  had 
an  opportunity  to  commit  the  crime,  and  their  confessions  are 
consistent  with  such  proof  and  corroborative  of  it,  and  the 
witness  who  swears  to  the  confession  is  apparently  truthful, 
honest,  and  intelligent,  then  confessions  so  made  might  be  en- 
titled to  weight.  And  you  are  also  instructed  that  in  criminal 
prosecutions  the  admissions  of  prisoners  are  received  in  evi- 
dence upon  the  same  principle  that  admissions  in  civil  suits 
are  received;  that  is,  upon  the  presumption  that  a  prisoner 
will  not  voluntarily  make  an  untrue  statement  against  his  own 
interest. 

"  I  further  charge  you  that  where  the  verbal  admissions  of 
a  person  charged  with  crime  are  offered  in  evidence,  the  whole 
of  the  admissions  must  be  taken  together,  as  well  that  part 
which  makes  for  him  as  that  which  may  make  against  him, 
and  if  the  part  of  the  statement  which  is  in  favor  of  the  re- 
spondent is  not  disproved,  and  is  not  apparently  improbable 
or  untrue,  when  considered  with  all  the  other  evidence  in  the 
case,  then  such  part  of  the  statement  is  entitled  to  as  much 
consideration  from  the  jury  as  any  other  part  of  the  statement. 
Alleged  confessions  and  statements  of  these  respondents  were 
received  simply  and  only  as  affecting  the  particular  one  alleged 
to  have  made  them,  and  cannot  be  considered  by  you  against 
the  other." 

Although  we  conceive  it  to  be  the  province  of  the  court  to 
determine,  in  a  case  free  from  doubt,  whether  the  confession  is 
voluntary  or  not  before  admitting  or  rejecting  the  same  as  evi- 
dence, yet  in  this  case  we  think  he  properly  submitted  that 
question  to  the  jury,  and  the  respondents  do  not  complain  of 
this  instruction.  The  assignments  of  error  based  upon  the 
rulings  of  the  court  relating  thereto  are  overruled. 

Objection  was  made  to  the  introduction  of  certain  exhibits 
which  were  admitted  in  evidence.  These  exhibits  were  written 
notes  which  the  witness  testified  were  handed  to  him  by  one 
of  the  respondents  to  be  delivered  to  the  other,  and  instead  of 
delivering  them,  the  witness  handed  them  to  the  sheriff  or  to 
his  wife.  The  witness  identified  the  exhibits,  and  they  were 
offered  in  evidence.  The  objection  was,  that  the  handwriting 
was  not  proven.  The  court  ruled  that  "whether  the  hand- 
writing be  proved  or  not,  is  a  question  that  is  necessarily  in- 
volved in  the  question  as  to  whether  these  papers  should  be 
admitted  in  evidence.     The  witness  states  that  he  received 


April,  1886.]  People  v.  Barker.  517 

them  from  the  parties,  and  that  he  handed  them  to  Mrs.  Todd. 
If  he  did  so  receive  them,  they  are  admissible  in  evidence; 
and  whether  he  received  them  and  handed  them  to  Mrs.  Todd 
is  a  question  of  fact  for  the  jury;  therefore  they  will  be  re- 
ceived." 

There  was  no  error  in  this  ruling. 

After  the  counsel  for  the  people  announced  that  the  testi- 
mony for  the  prosecution  was  closed,  the  counsel  for  respond- 
ents then  called  one  Matt  W.  Pinkerton,  who,  being  sworn 
and  examined  on  the  part  and  in  behalf  of  the  respondents, 
testified  that  he  resided  in  Chicago;  that  he  had  been  in  Paw 
Paw  before;  that  he  was  there  first  on  the  19th  of  August; 
that  he  had  seen  the  respondents.  And  counsel  for  the  re- 
spondents then  asked  the  witness  the  following  question:  — 

'*  Q.  I  want  to  ask  you  if  you  ever  called  the  attention  of 
Marshall  G.  Barker  to  section  9416  of  the  statutes  of  Mich- 
igan? 

"A.   I  did;  I  think  that  was  the  section. 

"Q.  (showing  book  to  witness).  Just  look  at  it.  Counsel 
for  respondents  then  stated:  'I  ofier  this  as  explanatory  of 
the  notes.' 

"Q.  That  was  prior  to  bringing  the  subject  to  the  attention 
of  William  Barker,  was  it? 

"A.   It  was  after,  —  after  the  first  interview  with  him." 

Counsel  for  respondents  then  read  the  section  of  the  statute 
in  evidence.  The  counsel  for  the  people  then  proceeded  to 
cross-examine  the  witness,  and  asked  him :  — 

"Q.    Did  you  have  a  conversation  with  Marshall  G.  Barker? 

"A.   I  did. 

"Q.    In  relation  to  Harvey  Keith?" 

The  respondents'  counsel  then  objected  to  any  conversation 
as  not  cross-examination.  It  appearing  that  the  conversation 
was  at  the  same  time  (by  the  further  examination  of  the  wit- 
ness), the  court  overruled  the  objection,  and  permitted  the  wit- 
ness to  be  cross-examined,  and  to  testify  to  the  conversation 
had  at  that  time.     Upon  this  ruling  error  is  assigned. 

It  is  laid  down  by  Mr.  Phillips  that  "if  a  witness  is  sworn, 
and  gives  some  evidence, — as,  for  inPtance,to  prove  an  instru- 
ment,— however  formal  the  proof  may  be,  he  is  to  be  consid- 
ered a  witness  for  all  purposes.  Or  if  a  witness  is  sworn,  and 
would  be  competent  to  give  evidence  for  the  party  calling  him, 
the  other  party  will  be  entitled,  strictly,  according  to  the  gen- 
eral rule,  to  cross'examine  him,  although  he  has  not  been 


518  People  v.  Barker.  [Mich. 

examined  in  chief":  2  Phill.  Ev.  *898;  Morgan  v.  Brydges^ 
2  Stark.  314;  Wentworth  v.  Crawford^  11  Tex.  127;  Beal  v. 
Nichols,  2  Gray,  264. 

In  the  last  case  cited,  the  witness  was  called  by  the  defend- 
ant for  the  sole  purpose  of  proving  the  execution  of  two  written 
contracts  which  the  plaintiff  refused  to  admit.  The  witness 
was  then  cross-examined  generally,  against  defendant's  objec- 
tion. Bigelow,  J.,  said:  "  We  see  no  valid  objection  for  chang- 
ing the  rule,  as  it  has  long  been  established  and  practiced 
upon  in  this  commonwealth,  that  a  party  calling  a  witness 
even  for  formal  proof  of  a  written  instrument,  or  of  other  pre- 
liminary matter,  thereby  makes  him  his  witness;  nor  can  he 
put  leading  questions  to  him  unless  permitted  to  do  so  by  the 
court  in  the  exercise  of  a  sound  discretion.  It  follows  that 
the  adverse  party  has  the  right  to  cross-examine  the  witness 
upon  all  matters  material  to  the  issue." 

Our  own  rulings  upon  the  scope  of  cross-examination  are 
familiar  to  the  bar,  and  have  been  quite  as  liberal  as  those  of 
the  supreme  court  of  Massachusetts:  People  v.  Hare,  57  Mich. 
505;  Thompson  y.  Richards,  lAi  16..  Vt2\  Chandler  v.  Allison,  \0 
Id.  461;  New  York  Iron  Mine  v.  Negaunee  Bank,  39  Id.  658; 
Driscoll  V.  People,  47  Id.  413;  Jacobson  v.  Metzger,  35  Id.  103; 
Lichtenherg  v.  Mair,  43  Id.  387;  Detroit  etc.  R.  R.  Co.  v.  Van 
Steinhurg,  17  Id.  99;  O'Donnell  v.  Segar,  25  Id.  367;  Wilson  v. 
Wagar,  26  Id.  452;  Haynes  v.  Ledyard,  33  Id.  319;  Stearns  v. 
Vincent,  50  Id.  221;  45  Am.  Rep.  37;  People  v.  Murray,  52 
Mich.  288;  Joslin  v.  Grand  Rapids  Ice  Co.,  53  Id.  322;  Dalman 
V.  Koning,  54  Id.  320. 

There  was  no  error  in  permitting  the  cross-examination  of 
the  witness. 

The  exceptions  are  overruled,  and  the  judgment  is  affirmed. 

Morse,  J.,  in  a  dissenting  opinion,  quoted  at  some  length  in  a  note  to 
Heldt  V.  State,  57  Am.  Rep.  839,  caustically  reviewed  the  means  employed  to 
obtain  a  confession  from  the  prisoners,  and  characterized  their  treatment 
after  arrest,  and  before  trial,  by  the  prosecuting  attorney  and  the  sheriff,  as 
"an  outrage  upon  justice,  for  which  there  can  be  given  no  possible  excuse, 
and  the  results  of  which,  as  intended,  were  used  against  them  without  right 
upon  the  trial  of  the  cause."  According  to  his  statement  of  the  facts,  the 
prosecuting  attorney,  the  sheriff,  and  a  detective  named  Pinkerton,  concerted 
to  keep  away  all  attorneys  from  the  prisoners,  and  to  introduce  Pinkerton 
as  a  lawyer,  get  him  employed  by  them,  and  as  their  pretended  counsel,  ob- 
tain a  confession  from  them.  The  prosecuting  attorney  and  the  sheriff  con- 
sequently kept  a  letter  written  by  Marshall  G.  Barker  to  a  firm  of  attorneys, 
and  refused  to  allow  one  of  the  attorneys  to  interview  the  prisoners.  They 
also  kept  all  other  counsel  from  the  prisoners  until  informed  by  the  circuit 


April,  1886.]  People  v.  Barker.  519 

judge  that  the  Barkers  were  entitled  to  see  attorneys  of  their  own  choice. 
The  prosecuting  attorney  had  a  detective,  one  Steams,  arrested  on  a  pre- 
tended charge  of  forgery,  and  placed  in  jail,  where  he  could  have  access  to 
the  Barkers.  Pinkerton  was  then  introduced  to  the  Barkers  by  the  sheriff 
as  A.  S.  Trade,  a  prominent  lawyer  of  Chicago,  employed  to  defend  Steams; 
and  the  sheriff  advised  the  Barkers  to  employ  Trade,  which  they  did.  Pin- 
kerton, as  their  attorney,  advised  them  what  story  each  should  tell  in  order 
to  get  Marshall  off  with  a  light  sentence,  and  to  acquit  William  altogether, 
and  obtained  a  confession  from  each  of  them,  in  accordance  with  his  theory, 
which  he  wrote  down.  The  officials  also  employed  another  party  in  the  jail, 
who  took  into  his  possession  notes  and  letters  from  Marshall  to  William, 
from  Marshall  to  his  wife,  and  from  William  to  Marshall,  some  of  which 
referred  to  their  supposed  lawyer,  and  what  he  had  advised  them  to  do,  and 
handed  them  to  the  sheriff's  wife.  The  written  confessions  were  ruled  out 
on  the  trial,  but  the  judge  thought  that  the  court  below  committed  a  grave 
error  in  admitting  the  notes  and  letters  in  possession  of  the  sheriff's  wife,  for 
they  had  the  effect,  to  some  extent,  of  carrying  out  the  conspiracy.  The 
alleged  confessions  of  the  Barkers  to  the  witness  De  Puy  in  the  presence  of 
the  witness  Cross,  were  made  while  the  Barkers  were  under  the  influence 
and  acting  on  the  advice  of  Pinkerton,  and  should  have  been  excluded.  The 
court  below  committed  a  grave  and  substantial  error  in  leaving  it  to  the  jury 
to  determine  whether  the  confessions  were  voluntary  or  not.  As  a  matter 
of  law,  the  confessions  were  not  voluntary,  and  the  court  should  have  so  de 
cided.  The  court  also  erred  in  allowing  the  cross-examination  of  Pinkerton, 
and  permitting  him  to  disclose  the  confidential  communications  of  the  Bar 
kers  to  him.  Neither  did  the  court  do  right  to  set  aside  a  juror,  upon  ita 
own  motion,  because  he  was  a  few  minutes  late,  and  had  been  playing  pool 
but  as  the  prisoners'  counsel  announced  themselves  as  content  with  the  jury 
as  selected,  with  challenges  still  remaining  in  their  hands,  it  was  an  error 
without  prejudice.  In  other  respects,  the  judge  agreed  with  the  prevailing 
opinion. 

Opinion,  when  Disqualifies  JtmoE:  See  Smith  v.  Eames,  36  Am.  Dec. 
521,  and  note  discussing  the  question;  Armiatead  v.  Commomoealtli^  37  Id. 
633;  Freeman  v.  People,  47  Id.  216;  Lohman  v.  People,  49  Id.  340;  Common- 
toeali/i  V.  Webster,  52  Id.  711;  Nelms  v.  State,  53  Id.  94,  and  note;  Van  Blari- 
cum  v.  People,  63  Id.  316;  SttOe  v.  Tliompaon,  74  Id.  342;  Monroe  v.  StaU,  76 
Id.  58;  Maddox  v.  StaU,  79  Id.  307. 

Rejectino  and  Excusino  Jurors  by  Court  without  Challenge.  — 
1 .  Discretionary  Poicer.  —  It  ia  a  recognized  duty  of  trial  courts  to  superin- 
tend the  selection  of  juries,  in  order  that  they  may  be  composed  of  proper 
persons:  Thompson  and  Mcrriam  on  Juries,  sec.  258.  A  large  discretion  ia 
necessarily  confided  to  the  courts  in  the  performance  of  this  duty.  It  ia 
therefore  a  well-settled  rule  that  a  court  may,  in  its  discretion,  of  its  own 
motion,  without  the  request  or  consent  of  either  party,  reject  or  excuse  a 
juror  before  he  has  been  accepted,  because  of  his  unfitness  to  serve,  or  for 
reasons  personal  to  himself,  and  ita  action  in  so  doing  will  not  be  reviewed,  in 
the  absence  of  a  clear  abuse  of  discretion:  Thompson  and  Mcrriam  on  Juries, 
•ec.  259;  Proffatt  on  Jury  Trial,  sec.  140;  I  Bishop's  Crim.  Proc,  3d  ed., 
•ec.  926;  Tatum  v.  Young,  1  Port.  298;  State  v.  Marshall,  8  Ala.  .102;  Ilinley 
v.  StaU,  29  Ark.  17,  22;  People  v.  Lee,  17  Cal.  76;  People  v.  Arceo,  32  Id.  40; 
Stratum  v.  People,  6  Col.  276,  279;  John  v.  StaU,  16  Fla.  564;  Watson  v.  SUiU, 
63  Ind.  648;  StaU  v.  Oatrander,  18  Iowa,  435;  StaU  v.  Dickson,  6  Kan.  209; 
Skmt  V.  HyaU,  13  Id.  232;  Atcliison  etc.  R.  R.  v.  Franklin,  23  Id.  74;  StaU  v. 


620  People  v.  Barker.  [Micli. 

Kane,  32  La.  Ann.  999;  State  v.  Somnier,  33  Id.  237;  Ware  v.  Ware,  8  Me. 
42;  Snow  v.  Weeka,  75  Id.  105;  Ailaa  Mining  Co.  v.  Johnston,  23  Mich.  36; 
Head  V,  iSto<«,  44  Miss.  731,  750;  Z)odi/c  v.  People,  4  Neb,  220;  5tote  v.  Kelly, 
1  Nev.  224;  Pierce  v.  iStoie,  13  N.  H.  53G;  Stale  v.  Benton,  2  Dev.  &  B. 
196,  221;  State  v.  Craton,  6  Ired.  164;  State  v.  J^onea,  80  N.  C.  415;  JevxU 
V.  Commontoealth,  22  Pa.  St.  94;  Anderson  v.  Wasatch  etc.  R.  R.,2,  Utah,  518; 
United  States  r.  Cornell,  2  Mason,  91,  106;  State  v.  Waggoner,  2  South.  Rep.  119 
(La.);  although  in  a  few  cases  it  has  been  held  that  if  a  court  excuse  a  juror 
without  good  and  sufficient  cause,  it  is  a  matter  of  exception:  Montague  v. 
Commomoealth,  10  Gratt.  767;  Parsons  v.  State,  22  Ala.  50;  Boles  v.  Stat<;  21 
Miss.  398;  so  in  Den  v.  Pissant,  1  N.  J.  L.  220,  it  is  said  that  a  juror  has  no 
right  to  challenge  himself,  and  though  a  good  cause  of  challenge  exists,  yet  if 
neither  party  will  take  advantage  of  it,  the  court  cannot  reject  him;  and  in 
Texas  it  is  held  that  the  law  regulating  the  organization  of  juries  in  criminal 
cases  does  not  confide  to  the  trial  judge  a  discretionary  power  to  excuse  a 
juror  summoned  on  a  special  venire:  Hill  v.  Slate,  10  Tex.  App.  618;  Rohles  v. 
Staie,  5  Id.  346;  Foster  v.  State,  8  Id.  248.  But  according  to  the  generally 
accepted  view,  the  defendant  in  a  criminal  case  is  not  prejudiced  by  the  re- 
jection of  even  a  proper  person,  so  long  as  an  impartial  jury  was  obtained: 
Staie  v.  Marshall,  8  Ala.  302;  Hurley  v.  State,  29  Ark.  17,  22;  People  v.  Arceo, 
32  Cal.  40;  Stratton  v.  People,  5  Col.  276,  279;  Stout  v.  HyaU,  13  Kan,  232; 
State  v.  Benton,  2  Dev.  &  B.  196,  221;  and  see  Allen  v.  State,  8  Tex.  App.  36; 
and  a  fortiori  could  neither  party  in  a  civil  action  complain:  See  Tatum 
V.  Young,  1  Port.  298;  Atchison  etc.  R.  R.  v.  Franklin,  23  Kan.  74;  Atlas 
Mining  Co.  v.  Johnston,  23  Mich.  36.  "Even  if  a  juror  had  been  set  aside 
by  the  court  for  an  insufficient  cause,"  says  Story,  J.,  in  United  States  v. 
Cornell,  2  Mason,  91,  106,  "I  do  not  know  that  it  is  matter  of  error,  if  the 
trial  has  been  by  a  jury  duly  sworn  and  impaneled,  and  above  all  excep- 
tions"; and  said  Sawyer,  J.,  in  People  v.  Arceo,  supra:  "A  party  is  entitled 
to  a  lawful  jury,  but  no  decision  has  been  brought  to  our  notice  to  the  effect 
that  under  all  circumstances  he  is,  as  a  matter  of  absolute  right,  entitled  to 
have  the  first  juror  called  who  has  all  the  statutory  qualifications  ";  and  in 
Sjiow  v.  Weeks,  75  Me.  105,  the  court  in  speaking  of  the  power  of  a  trial 
judge  to  exclude,  in  his  discretion,  a  juror  who  is  not  legally  disqualified, 
tersely  remark:  "He  may  put  a  legal  juror  off.  He  cannot  allow  an  illegal 
juror  to  go  on."  On  the  same  principle,  the  forbearance  of  the  court  to  set 
aside,  of  its  own  motion,  a  juror  against  whom  a  cause  of  challenge  exists, 
cannot  be  assigned  for  error:  Thompson  and  Merriam  on  Jurors,  sec.  259; 
State  V.  Benton,  2  Dev.  &  B.  196,  221;  Mmphy  v.  State,  37  Ala.  142;  Waller 
v.  Staie,  40  Id.  325;  Skinner  v.  State,  53  Miss.  399;  Bellows  v.  Weeks,  41  Vt. 
590;  Young  v.  State,  23  Ohio  St.  577.  In  such  a  case,  if  a  party  would  object 
to  the  juror,  he  should  challenge  him;  and  a  failure  to  do  so  will  be  construed 
as  a  waiver  of  the  juror's  incompetency. 

2.  Sufficient  Reasons.  —  a.  Conscientious  Scruples  —  Having  Formed  Opinion 
— Bias.  —  A  sufficient  reason  for  the  exercise  of  this  discretion  of  the  court 
in  rejecting  jurors,  of  its  own  motion,  is  the  possession  by  a  juror  of  con- 
scientious scruples  against  the  infliction  of  capital  punishment:  Proffatt  on 
Jury  Trial,  sec.  140;  Thompson  and  Merriam  on  Juries,  sec.  259;  State  v. 
Marsluxll,  8  Ala.  302;  Waller  v.  State,  40  Id.  325;  Russell  v.  State,  53  Miss. 
367;  Fortenberry  v.  State,  55  Id.  403;  White  v.  State,  52  Id.  216,  222;  State  v. 
Ward,  39  Vt.  225;  United  States  v.  Cornell,  2  Mason,  91,  104;  Mansell  v. 
Queen,  8  El.  &  B.  54;  although  the  juror  states,  in  answer  to  questions  by 
counsel  for  the  prisoner,  that  if  he  was  on  the  jury,  and  the  law  required 


April,  1886.]  People  v.  Barker.  521 

him  to  convict,  he  would  do  so,  notwithstanding  the  pnnishment  might  be 
capital:   Waller  v.  State,  supra. 

The  court  may  also  of  its  own  motion  reject  a  juror  who  has  formed,  or 
formed  and  expressed,  an  opinion  as  to  the  guilt  or  innocence  of  the  accused, 
or  as  to  the  merits  of  a  case:  Lore  v.  Stale,  4  Ala.  173,  174;  Watson  v.  Sta^e, 
63  Ind.  548;  Zimmerman  v.  State,  56  Md.  536;  Marsh  v.  State,  30  Miss.  627; 
State  V.  Jones,  80  N.  C.  417;  Boardman  v.  Wood,  3  Vt.  570,  578;  Atlas  Min- 
ing Co.  V.  Johnston,  23  Mich.  36;  although  the  opinion  might  not  have  been 
sufficient  to  have  sustained  a  challenge:  Atlas  Mining  Co.  v.  Johnston,  supra. 
So  jurors  may  be  excluded,  who  have  formed  such  an  opinion  of  the  uncon- 
stitutionality of  a  statute  on  which  the  prosecution  is  founded,  that  they 
cannot  convict  the  defendant:  Commonwealth  v.  Attstin,  7  Gray,  51;  Pierce  v. 
State,  13  N.  H.  536. 

And  the  court  may  likewise,  in  its  discretion,  set  aside  a  juror  for  par- 
tiality otherwise:  Thompson  and  Merriam  on  Juries,  sec.  259;  Smith  v. 
State,  55  Ala.  1;  State  v.  Williams,  30  Me.  484;  Snow  v.  Weeks,  75  Id.  105; 
Commonwealth  v.  Livermore,  4  Gray,  18;  Ounter  v.  Oraniteville  Mfg.  Co.,  18 
S.  C.  262;  contra:  Montague  v.  CommonvxaWi,  10  Gratt.  767;  and  it  should 
be  noticed  that  in  some  of  these  cases  no  legal  objection  could  have  been 
taken  to  the  juror:  See  Smith  v.  State,  55  Ala.  1,  10,  where  it  was  said  by 
Brickell,  C.  J.,  that  "it  is  the  duty  of  the  court,  when  it  shall  appear  satis- 
factorily that  any  person  called  as  a  juror  has  not  the  requisite  qualifications 
of  integrity,  impartiality,  or  intelligence,  at  any  time  before  he  has  been 
elected  by  the  state  suid  the  defendant,  to  reject  him."  So  the  court  may 
excuse  a  juror  to  "relieve  him  from  embarrassment":  John  v.  State,  16  Fla. 
1)54. 

b.  Sickness  —  Intoxication  —  Ignorance. — A  juror  may  be  excused  on  ac- 
count of  sickness  of  himself:  Thompson  and  Merriam  on  Juries,  sec.  259; 
StcUe  V.  Ostrander,  18  Iowa,  435;  Jewell  v.  Commonwealth,  22  Pa.  St.  94;  or 
of  his  family:  State  v.  Ostrander,  supra;  King  v.  State,  1  Mo.  717;  but  in  the 
latter  case  it  has  been  held  by  some  authorities,  contrary  to  the  general  prin- 
ciple, that  the  sickness  must  have  been  of  such  a  serious  character  as  to  de- 
mand the  juror's  personal  attention:  Parsons  v.  State,  22  Ala.  50;  Boles  v. 
State,  21  Miss.  398;  and  deafness  is  an  infirmity,  for  which,  like  ordinary 
sickness,  a  juror  may  be  excused:  Jesse  v.  State,  20  Ga.  156;  Atlas  Mining 
Co.  V.  Johnston,  23  Mich.  36. 

If  a  juror  is  intoxicated,  he  may  of  course  be  set  aside:  Thompson  and 
Merriam  on  Juries,  sec.  259;  Proffatt  on  Jury  Trial,  sec.  140;  Thomas  v. 
State,  27  Ga.  287;  Bullard  v.  Spoor,  2  Cow.  430;  Pierce  v.  State,  13  N.  H. 
636,  555;  Torrent  v.  Yager,  52  Mich.  506. 

The  court  may  also  excuse  a  juror  for  lack  of  intelligence:  StcUe  v.  Roun- 
tree,  32  La.  Ann.  1144;  but  in  Campbell  v.  State,  48  Ga.  353,  it  was  held  that  • 
the  court  had  no  right  to  purge  the  panel  of  jurors,  returned  for  service  dur- 
ing the  term,  of  such  jurors  as  could  neither  write  the  English  language  nor 
read  the  constitutions  of  the  United  States  and  of  the  state  of  Georgia.  If  a 
juror  does  not  understand  the  English  language,  he  may  be  excused:  Thomp- 
son and  Merriam  on  Juries,  sec.  259;  Profifatt  on  Jury  Trial,  sec.  140;  People 
V.  Arceo,  32  Cal.  40;  Town  qf  Trinidad  v.  Simpson,  5  Col.  05,  71;  State  v. 
Rosseau,  28  La.  Ann.  679;  Stale  v.  Guidry,  28  Id.  030;  Atlas  Mining  Co.  v. 
Johnston,  23  Mich.  36;  SlaU  v.  Ring,  29  Minn.  78;  Sutton  v.  Fox,  55  Wis.  631 ; 
42  Am.  Rep.  744;  O'Neil  v.  Lake  Superior  Iron  Co.,  35  N.  W.  Rep.  102 
<Mich.).  Neither  of  the  above  grounds,  however,  may  be  causes  of  challenge: 
8«e  Town  qf  Trinidad  v.  Simpson,  5  CoL  65;  Gay  v.  Ardry,  14  La.  228;  State 


522  People  v.  Barker.  [Mich. 

V.  Push,  23  La.  Ann.  14;  State  v.  Gay,  25  Id.  472;  Citizens'  Bank  v.  Strauss, 
26  Id.  736;  State  v.  Lewis,  28  Id.  84;  White  v.  State,  52  Miss.  216,  224; 
American  L.  Ins.  Co.  v.  Mahone,  56  Id.  180;  Commonwealth  v.  fTinnemore,  1 
Brewst.  356;  2  Id.  378;  Lyles  v.  5tof«,  41  Tex.  172;  EtJieridge  v.  (Stofe,  8  Tex. 
App.  133. 

c.  Miscellaneous.  —  It  is  seen  from  the  foregoing  that  the  court  is  author- 
ized, ex  mero  motu,  in  its  discretion,  to  reject  or  excuse  a  person  summoned 
aa  a  juror,  for  reasons  which  may  not  be  sufficient  to  support  a  challenge. 
But  in  Bogga  v.  State,  45  Ala.  30,  it  was  held  that  the  court  could  not  reject 
a  juror  except  for  some  of  the  causes  given  in  the  statute,  and  in  the  manner 
prescribed  by  law,  without  the  consent  of  the  accused;  see  also  Lyman  v. 
State,  45  Id.  72;  Montague  v.  Commonwealth,  10  Gratt.  767.  It  was  therefor© 
held  that  on  the  trial  of  a  felony  it  was  error  for  the  court,  against  the  objec- 
tion of  the  accused,  to  exclude  a  juror  who  had  been  regularly  summoned 
and  drawn,  because  since  such  juror  was  summoned  and  before  he  was  drawn 
he  had  been  convicted  of  an  assault,  and  at  the  time  of  the  trial  was  in  the 
county  jail.  But  the  cases  of  Boggs  v.  State  and  Lyman  v.  State,  supra,  were 
overruled  in  Smith  v.  State,  55  Ala.  1,  10,  the  court  saying:  "The  error  of  the 
decision  in  these  cases  lies  in  the  supposition  that  there  are  no  causes  foi 
the  exclusion  of  jurors  except  such  as  are  enumerated  as  challenges  for  cause 
in  the  statute." 

It  has  been  held  that  a  juror  may  be  excused  because  he  was  a  witness  in 
the  next  case  on  call:  People  v.  Carrier,  46  Mich.  442;  or  because  he  is  a 
postmaster:  StewaH  v.  State,  1  Ohio  St.  66;  or  because  he  belonged  to  a  fire 
company  in  the  city  where  the  court  was  in  session:  Staie  v.  Ward,  39  Vt. 
255;  or  where  there  is  a  probability  that  the  juror  was  on  the  grand  jury 
which  found  the  indictment  against  the  defendant,  the  juror  not  recollecting 
whether  he  was  or  not:  Staie  v.  Kelly,  1  Nev.  224;  and  the  court  has  discre- 
tionary power  to  excuse  a  juror,  upon  a  statement  by  the  defendant's  coun- 
sel, after  his  challenges  were  exhausted,  that  they  would  impeach  the 
character  of  a  brother-in-law  of  the  juror,  who  was  a  witness  for  the  state: 
State  V.  Chistian,  30  La.  Ann.  367. 

In  the  absence  of  any  statement  of  the  grounds  on  which  jurors  were  ex- 
cused by  the  court  below,  it  will  be  presumed  to  have  been  done  upon  suf- 
ficient and  legal  cause:  SUiie  v.  Breavx,  32  La.  Ann.  222. 

If  a  juror  is  excused,  be  ceases  to  be  a  juror,  and  cannot  be  recalled:  8tat0 
V.  Whitman,  14  Rich.  113. 

Discharge  of  Juries  or  Jurors  for  Incapacity,  Unfitness,  or  Impro- 
priety OF  Accepted  Jurors.  —  It  was  at  one  time  thought  that,  in  criminal 
cases,  a  juror  could  not  be  withdrawn,  or  a  jury  discharged,  when  sworn, 
without  giving  a  verdict:  Ferrar's  Case,  T.  Raym.  84;  Anonymous,  Fost.  Cr. 
L.  27,  31;  3  "Wliarton's  Am.  Crim.  Law,  6th  ed.,  sec.  3130;  but  it  is  now 
well  settled  that  a  court  has  the  power  in  such  cases,  where  there  is  mani- 
fest or  "legal"  necessity:  3  Wharton's  Am.  Crim.  Law,  sec.  3130;  Cooley's 
Const.  Lim.  *327;  United  States  v.  Perez,  9  Wheat.  679;  United  States  v.  Cool- 
idge,  2  Gall.  364;  Mahala  v.  State,  10  Yerg,  532;  31  Am.  Dec.  591;  and  the 
accused  may  be  again  tried  upon  the  same  charge  without  such  proceed- 
ing constituting  any  protection:  Id.;  although  the  unauthorized  discharge  of 
a  juror,  after  the  trial  has  been  begun,  will  amount  to  an  acquittal,  and  is 
available  as  a  defense  in  another  trial:  Ex  parte  Clements,  50  Ala.  459.  In 
civil  cases,  however,  something  more  of  a  discretion  seems  to  be  given  the 
trial  court;  and  it  has  been  held  that  the  appellate  court  will  interfere  with 
great  relactauce  with  this  discretion  in  excusing  an  accepted  juror:  Orady  v 


f 


April,  1886.]  People  v.  Barker.  523 

Early,  18  Cal.  108.  "  Except  under  very  peculiar  circumstances,  it  is  difficult 
to  see  how  the  erroneous  exercise  of  a  mere  discretion  in  excusing  a  juror  in 
a  civil  case  could  operate  to  the  prejudice  of  a  party  ":  Id.,  per  Baldwin,  J. 

Our  purpose  is  to  inquire  what  incapacity,  unfitness,  or  improper  conduct 
by  an  accepted  juror  creates  a  "legal  necessity,"  so  that  a  court  may  with- 
draw the  juror  or  discharge  the  jury. 

1.  Objections  Existing  at  Time  of  Juror's  Acceptance.  — It  will  serve  to  recon- 
cile cases  falling  under  this  head  to  note  whether  or  not  the  objection  to  the 
juror  was  known  to  the  parties  at  the  time  they  accepted  him;  for  if  it  was, 
it  might  well  be  held  that  they  had  waived  the  objection  by  neglecting  to 
raise  it;  and  also,  in  criminal  cases,  whether  or  not  the  objection  was  raised 
before  the  juror  was  sworn,  or  before  evidence  was  given,  or  afterwards,  and 
whether  the  state  or  the  prisoner  raised  it;  for  in  a  criminal  case  it  becomes 
a  serious  question  for  the  state  to  raise  an  objection  of  incompetency  after  the 
jury  is  sworn,  or  at  least  after  evidence  is  introduced. 

Though  there  is  no  right  of  challenge  after  a  juror  is  sworn,  the  court  may 
nevertheless  permit  it:  1  Bishop's  Crim.  Proc.,  3d  ed.,  sec.  947;  Regina  v. 
Flint,  3  Cox  C.  C.  66. 

If  a  juror  persistently  refuses  to  be  sworn,  there  would  seem  to  be  no  doubt 
as  to  the  power  of  the  court  to  discharge  him:  Isaac  v.  Stale,  2  Head,  458. 
But  it  has  been  held  that  after  a  juror  has  been  selected,  but  before  he  haa 
been  sworn  in  chief,  the  court  has  no  power  to  discharge  him  because  he  had 
made  different  and  contradictory  statements,  under  oath,  as  to  his  qualifica- 
tions, "  thereby  showing  to  the  court  that  he  did  not  know  his  own  mind,  or 
was  willfully  corrupt ":  Lyman  v.  State,  45  Ala.  72;  but  this  case  has  been 
overruled:  Smith  v.  Stale,  55  Id.  1,  10. 

If  an  alien  is  discovered  on  the  jury,  after  the  jury  is  sworn  and  the  trial 
commenced,  he  may  be  discharged,  and  another  juror  sworn  in  his  place:  1 
Bishop's  Crim.  Law,  7th  ed.,  sec.  1039;  3  Wharton's  Am.  Crim.  Law,  6th 
ed.,  sec.  3130;  Stone  v.  People,  2  Scam.  326;  and  a  juror  may  be  set  aside 
because  he  was  not  of  age,  after  he  has  been  accepted,  but  before  he  is  sworn: 
Jlines  V.  State,  8  Humph.  597.  But  it  has  been  held  that  after  the  jury  has 
been  sworn,  the  court  cannot  discharge  some  of  the  jurors,  on  motion  of  the 
prosecuting  officer,  because  they  were  not  freeholders,  as  required  by  law; 
and  having  done  so,  the  prisoner  was  entitled  to  be  discharged:  Ward  v. 
State,  1  Humph.  253.  If,  after  a  jury  is  sworn,  but  before  any  evidence  has 
been  given,  it  transpires  that  the  place  of  a  juryman  duly  examined  and 
selected  has  been  unauthorizedly  taken  by  another  without  challenge  or  ex- 
amination, the  court  should,  on  objection  made,  discharge  the  latter,  and  sub- 
stitute the  former,  and  have  the  jury  resworn:  State  v.  Sternberg,  59  Mo.  410. 

If  it  appears  for  the  first  time  after  the  jury  has  been  sworn,  whether  evi- 
dence be  given  or  not,  that  one  of  the  jurors  was  on  the  grand  jury  which 
had  found  the  indictment  against  the  defendant,  the  court  may,  on  motion 
or  objection  of  the  defendant,  discharge  the  jury  or  discharge  the  juror  and 
substitute  another  in  his  stead:  Dilworth  v.  Commonwealth,  12  Gratt.  689;  65 
Am.  Dec.  264;  Stevoard  v.  State,  15  Ohio  St.  155;  and  see  Regina  v.  Sullivan^ 
8  Ad.  &  K  831. 

A  juror  may  be  discharged  after  he  is  sworn,  and  before  evidence  is  given, 
because  it  is  discovered  he  is  opposed  to  capital  punishment:  People  v.  Damon^ 
13  Wend.  361;  People  v.  Wilson,  3  Park.  Cr.  202;  StaU  v.  Z>Mib«,  34  La.  Ann. 
919;  Letcis  v.  Stale,  17  Miss.  115;  or  because  it  is  then  ascertained  that  he  will 
not  convict  on  circumstantial  evidence:  State  v.  Pritchard,  16Nev.  101;  Peo- 
pU  ▼.  Bodine,  1  £dm.  Sel.  Cas.  36,  44;  and  in  such  a  case  the  court  no«d  oot 


524  People  v.  Barker.  [Mich. 

illscbarge  the  eleven  remaining  jurors,  but  may  impanel  another  juror  in 
place  of  the  one  discharged:  State  v.  Pritckard,  supra.  In  an  early  Alabama 
case  it  was  held,  however,  that  where  a  juror  was  accepted,  but  had  not 
been  sworn,  he  could  not  be  excused  by  the  court  because  he  was  opposed  to 
penitentiary  punishment:  Stalls  v.  State,  28  Ala.  25;  but  this  decision  is  over- 
fuled:  Smith  v.  State,  55  Id.  1,  7. 

Where  a  juror  was  selected,  but  before  he  was  sworn  stated  to  the  court 
' '  that  he  had  formed  and  expressed  an  opinion, "  it  was  held  error  in  the  court 
to  discharge  the  juror,  because  it  did  not  appear  that  the  opinion  affected 
his  competency;  but  that  the  prisoner  having  obstinately  refused  to  say  any- 
thing, when  appealed  to  by  the  court,  could  not  avail  himself  of  the  error 
after  verdict:  Nor/leet  v.  State,  4  Sneed,  339;  and  where,  during  the  progress 
of  a  murder  trial,  the  prisoner's  counsel  stated  to  the  court  that  they  had 
been  informed  and  believed  that  one  of  the  jurors  had  before  the  trial 
expressed  an  opinion  that  the  prisoner  was  guilty,  and  asked  the  court  to 
suspend  the  trial  and  hear  evidence  upon  the  point,  and  the  court  heard 
evidence  and  found  the  disqualification  to  exist,  and  they  thereupon  offered 
to  waive  the  disqualification  and  proceed,  or  go  on  with  eleven  jurors,  but 
the  court  refused  to  do  either,  and  discharged  the  jury,  it  was  held  that 
these  facts  did  not  bar  a  further  prosecution  of  the  prisoner:  State  v.  AlUn^ 
46  Conn.  531;  but  it  wm  decided  in  Van  Blaricum  v.  State,  16  111.  364,  63 
Am.  Dec.  316,  that  where  a  juror  states,  upon  examination,  that  he  had 
formed  and  expressed  an  opinion  as  to  the  guilt  of  the  accused,  but  is  ac- 
cepted by  the  prisoner,  and  before  he  has  been  accepted  or  challenged  by  the 
people  the  court  orders  him  to  stand  aside,  it  is  erroneous,  —  a  decision  of 
questionable  correctness.  After  a  juror  has  been  accepted  in  a  civil  case,  h« 
may  be  discharged  on  objection  by  one  of  the  parties,  because  he  stated  "his 
mind  was  made  up  ":  Orady  v.  Early,  18  Cal.  108. 

A  juror,  it  has  been  also  held,  may  be  discharged  on  objection  of  the  prose- 
cuting attorney,  after  the  jury  is  sworn,  but  before  evidence  is  given,  because 
of  bias:  McGuire  v.  State,  37  Miss.  369;  and  this  was  held  proper,  even  after 
evidence  given,  in  United  States  v.  Morris,  1  Curt.  23;  but  this  is  an  extreme 
case:  See  1  Bishop  on  Criminal  Law,  7th  ed.,  sec.  1039.  The  court  may  un- 
doubtedly order  a  mistrial  after  the  jury  is  sworn,  on  the  ground  that  a  juror 
had  fraudulently  procured  himself  to  be  selected  at  the  instance  of  the  pris- 
oner to  secure  an  acquittal:  State  v.  Bell,  81  N.  C.  591.  It  lias  also  been 
held  that  the  court  might,  in  its  discretion,  after  a  juror  had  been  elected, 
discharge  him  on  request  of  the  prosecuting  officer,  because  of  his  relation- 
ship to  the  defendant:  Boyd  v.  State,  14  Lea,  161;  and  in  a  civil  case,  after 
the  jury  has  been  sworn,  but  before  any  evidence  is  given,  the  court  may,  on 
request  of  the  plaintiff's  attorney,  discharge  a  juror,  because  related  to  the 
defendant,  and  direct  another  juror  to  be  called  and  sworn  in  his  place: 
Tliomas  v.  Leonard,  4  Scam.  556.  But  during  the  trial  of  a  criminal  case  the 
jury  cannot  be  discharged  because  it  is  then  discovered  that  one  of  the  jurors 
is  a  relative  of  the  prisoner:  Regina  v.  Wardle,  1  Car.  &  M.  647;  and  where, 
after  a  jury  had  been  impaneled  and  sworn,  the  complaint  read  to  them, 
and  the  defendant  pleaded  to  it,  but  before  any  evidence  given,  the  court, 
at  the  instance  of  the  solicitor,  and  against  the  objection  of  the  defentlant, 
discharged  one  of  the  jurors,  because  he  was  shown  to  be  a  witness  in  the 
case,  this  is  unauthorized,  and  equivalent  to  acquittal:  Bell  v.  Staie,  44  Ala. 
393. 

2.  Objections  Arisinj  after  Juror's  Acceptance. — If  a  juror  in  a  criminal 
case  should  die  before  verdict,  the  survivors  must  of  course  be  discharged. 


April,  1886.]  People  v.  Barker.  525 

or  perhaps  another  juror  sworn,  and  the  prisoner  tried  afresh:  Cooley's  Const. 
Lim.  •327;  1  Wharton's  Am.  Crim.  Law,  6th  ed.,  sec.  588;  People  v.  Webb, 
38  Cal.  467,  480;  or  if  one  of  the  jurors  should  become  insane:  Id.;  3  Whar- 
ton's Am.  Crim.  Law,  sec.  3130;  United  States  v.  Haskell,  4  Wash.  C.  C.  402; 
and  the  same  rules  would  apply  to  civil  cases.  So  if  a  juror  becomes  incapaci- 
tated through  sickness:  Cooley's  Const.  Lira.  *327;  3  Wharton's  Am.  Crim. 
Law,  sec.  3130;  1  Bishop's  Crim.  Law,  7th  ed.,  sec.  1032;  Bex  v.  Scalhert,  2 
Leach  C.  C.  620;  Hex  v.  Edwards,  4  Taunt.  309;  3  Camp.  207;  Russ.  &  R.  C.  C. 
224;  nex  v.  BaneU,  Jebb  C.  C.  103;  Hex  v.  Delany,  Id.  106;  Reglna  v.  Beere, 
2  Moody  &  R.  472;  Begina  v.  Ashe,  1  Cox  C.  C.  150;  Regina  v.  Newton,'^ 
Car.  &  K.  85;  Ned  v.  State,  7  Port.  187,  214;  McCauley  v.  State,  26  Ala.  135, 
144;  Mixon  v.  State,  55  Id.  129;  37  Am.  R«p.  695;  Pecrple  v.  Wehb,  38  Cal. 
467,  480;  Hector  v.  State,  2  Mo.  166;  State  v.  Baber,  74  Id.  292;  StaU  v.  Mc- 
Kee,  1  Bail.  651,  653;  State  v.  Curtis,  5  Humph.  601;  Commonwealth  v.  FeUsy 
9  Leigh,  613;  Foote  v.  Silsby,  1  Blatchf.  445;  Commonvxalth  v.  Merrill,  Thach. 
C.  C.  1;  State  v.  Moncla,  2  South.  Rep.  814  (La.);  and  where  two  per- 
sons were  tried  for  murder,  and  the  jury  had  agreed  as  to  one  of  them, 
it  was  held,  a  juror  having  been  taken  ill,  that  a  verdict  as  to  that  one 
might  be  received,  and  the  jury  discharged  as  to  the  other  prisoner:  Begina 
v.  Leary,  3  Craw.  &  D.  212;  but  it  has  been  held  that  illness  will  not  justify 
a  discharge  before  verdict,  if  it  can  be  removed  by  permitting  the  jurors 
to  have  refreshments:  Commonwealth  v.  Clue,  3  Rawle,  498;  and  to  justify  a 
discharge,  the  juror's  statement  should  be  made  under  oath,  or  medical  evi- 
dence heard:  Rulo  v.  State,  19  Ind.  298.  On  the  same  principle,  the  court 
has  the  power  to  allow  a  juror  selected  by  the  parties  to  stand  aside,  because 
of  his  physical  inability  to  sit:  Fletcher  v.  State,  6  Humph.  249. 

If,  during  a  trial,  a  juror  becomes  too  sick  to  proceed,  the  jury  may  be  dis- 
charged, and  the  cause  retried  before  another  jury  at  the  same  or  a  subse- 
quent term:  1  Bishop's  Crim.  Proc.,  3d  ed.,  sec.  948;  Mixon  v.  State,  55 
Ala.  129;  37  Am.  Rep.  695;  StaU  v.  Curtis,  5  Humph.  601;  Pannell  v.  State, 
29  Ga.  681;  Commonwealth  v.  Merrill,  Thach.  C.  C.  1;  Cal.  Pen.  Code,  sees. 
1123,  1139;  Cal.  Code  Civ.  Proc,  sec.  615;  or  another  juror  maybe  added: 
1  Bishop's  Crim.  Proc,  sec.  948;  Rex  v.  Scalbert,  2  Leach  C.  C.  620;  Rex 
V.  Edwards,  4  Taunt.  309;  3  Camp.  207;  Russ.  &  R.  C.  C.  224;  Regina  v. 
Beere,  2  Moody  &  R.  472;  Regina  v.  Aslie,  1  Cox  C.  C.  150;  Foote  v.  Silsby,  1 
Blatchf.  445;  Cal.  Pen,  Code,  sec.  1123;  Cal.  Code  Civ.  Proc.,  sec.  615;  but 
see  ElltMH  V.  State,  12  Tex.  App.  557;  Sterling  v.  State,  15  Id.  249;  or  in  civil 
cases  iu  California,  the  trial  may  proceed  with  the  remaining  jurors:  Code 
Civ.  Proc.,  sec.  615;  and  in  criminal  cases  in  Texas,  under  the  constitu- 
tion and  statutes,  the  trial  may  likewise  proceed  before  the  remaining  jurors: 
Ray  V.  State,  4  Tex.  App.  450;  but  if  another  juror  be  added,  the  prisoner 
should  bo  offered  his  challenges,  not  only  to  the  new  juror,  but  to  any  and 
all  of  the  original  eleven,  and  the  eleven  should  be  sworn  de  novo,  and  the 
trial  begin  anew:  1  Bishop's  Crim.  Proc.,  sec.  948;  Bex  v.  Edwards,  4  Taunt. 
309;  3  Camp.  207;  Russ.  &  R.  C.  C.  224;  Regina  v.  Beere,  2  Moody  4  R.  472; 
People  v.  Stewart,  64  Cal.  60. 

If  a  juror  becomes  intoxicated  after  he  is  accepted,  be  may  be  discharged, 
and  another  one  sworn  in  his  place:  Jones's  Case,  cited  2  Leach  C.  C.  620; 
Nolanv.  State,  2  Head,  520;  StaU  v.  McKee,  1  Bail.  651,  653;  or  the  jury  may 
also  undoubtedly  be  discharged. 

If  a  juror  should  escape  or  abscond  liefore  a  verdict  is  reached,  the  jury  of 
course  would  have  to  be  discharged,  or  another  juror  sworn  in,  and  proceed- 
ings again  commenced:  I  Bishop  on  Crimin&l  Law,  7th  ed.,  sec.  1038;  //art- 


526  Kendrick  v.  Towi.e.  [Mich. 

corn's  Case,  cited  2  Hale  P.  C.  295;  Jiegina  v.  Ward,  10  Cox  C.  C.  573;  State 
V.  Hall,  9  N.  J.  L.  256;  Tooel  v.  Commonwealth,  11  Leigh,  714;  compare  Ora- 
lie  V.  State,  2  O.  Greene,  559. 

If  the  court  finds  that  a  juror  has  been  tampered  with  during  thd  trial,  it 
may  order  him  withdrawn:  Staie  v.  Bailey,  65  N.  C.  426;  State  v.  Wiseman, 
68  Id.  203;  and  the  court  may  discharge  a  juror,  who,  after  he  was  selected, 
but  before  he  was  sworn,  had  been  observed  by  signs  to  indicate  to  a  brother- 
in-law  of  the  prisoner  whom  to  reject  or  accept  as  jurors:  Lewis  v.  Staie,  3 
Head,  127. 

Alien  is  not  CJompetent  to  Sit  on  Juet:  See  Reich  v.  State,  21  Am.  Rep. 
265. 

Number  of  Jurors  cannot  be  Less  than  Twelve:  Carpenter  v.  Staie,  34 
Am.  Dec.  116;  IForifc  v.  State,  59  Id.  671.  Nor  can  a  legal  verdict  be  ren- 
dered in  a  criminal  case  by  a  jury  of  more  than  twelve:  Bullard  v.  Staie,  19 
Am.  Rep.  30. 

Confessions,  when  Admissible  as  Voluntary:  See  ffendricksonv.  People, 
61  Am.  Dec.  721,  and  note;  Jones  v.  State,  62  Id.  550,  and  note;  People  v. 
Rogers,  72  Id.  484,  and  note;  State  v.  Garvey,  26  Am.  Rep.  123;  State  v.  jRevella, 
44  Id.  436;  Nolen  v.  State,  46  Id.  247,  and  note;  Heldt  v.  Staie,  57  Id.  835, 
and  note  quoting  at  length  the  dissenting  opinion  of  Mason,  J.,  in  the  prin- 
cipal case;  and  see  State  v.  Orear,  41  Id.  296. 


KIendeick  V.  TOWLE. 

[60  MiCHiOAN,  863.  J 

Error  cannot  bb  Assioned  for  Refusal  to  Give  Request  to  Charqh, 
where,  although  it  was  not  given  in  the  language  used,  it  was  given  in 
substance. 

Interest  may  be  Allowed  on  Amount  op  Damages  awarded  by  the  jury 
for  property  destroyed  by  the  negligence  of  the  defendant,  from  the  time 
of  its  destruction,  where  it  does  not  appear  that  anything  more  than 
actual  compensation  was  awarded,  unless  the  addition  of  interest  would 
increase  the  damages  to  so  great  an  extent  as  to  be  clearly  unjust  when 
the  value  of  the  property  is  taken  into  consideration. 

One  Who  Operates  Private  Railroad  with  Locomotive-engine  Takes 
UPON  Himself  Large  Responsibilties  to  prevent  loss  by  fire  there- 
from, and  is  required  to  use  an  amount  of  care  and  caution  commen- 
surate with  and  in  proportion  to  the  risks  assumed. 

Owner  of  Saw-mill  is  not  Guilty  of  Contributory  Negligence,  de- 
feating his  right  to  recover  for  loss  by  fire  from  the  locomotive-engine 
of  a  private  railroad  which  had  been  constructed  after  the  mill  was  built, 
from  the  fact  that  he  allowed  combustible  material  to  accumulate  around 
the  mill  in  near  proximity  to  the  railroad;  but  he  had  the  right  to  use 
such  material  to  fill  up  the  waste  and  low  places  about  the  mill,  just  as 
he  was  au;customed  to  do  before  the  railroad  was  built,  and  was  not 
obliged  to  guard  his  premises  to  relieve  the  owner  of  the  railroad  from 
liability  for  his  negligent  acts. 

Case.     The  facts  are  stated  in  the  opinion. 


April,  1886.]  Kendrick  v.  Towle.  527 

Mitchell  and  McGarry,  for  the  appellant. 
Wilson  and  Trowbridge,  for  the  respondent. 

By  Court,  Sherwood,  J.  The  defendant  was  the  owner  and 
operator  of  a  logging  railroad,  which  extended  from  Wager's 
mill,  a  point  on  the  Detroit,  Lansing,  and  Northern  railroad, 
in  the  county  of  Montcalm,  some  six  miles  back  in  the  county, 
to  a  tract  of  pine  timber.  The  road  was  the  private  property 
of  the  defendant,  built  under  no  charter  from  the  state,  and  was 
run  and  operated  as  a  private  enterprise,  and  used  principally 
for  hauling  logs.  The  cars  were  propelled  by  a  locomotive- 
engine,  formerly  used  on  the  Wabash  railroad.  It  was  a 
Mason  standard  gauge,  and  a  wood-burner. 

The  engine,  in  passing  over  the  defendant's  road,  passed 
within  thirty  or  forty  feet  of  a  saw  and  shingle  mill  of  the 
plaintifif.  The  mill  had  been  built  several  years  before  the 
railroad  was  constructed,  and  had  not  been  running  for  three 
or  four  months  previous  to  the  fifteenth  day  of  September, 
1883j  but  before  the  mill  was  shut  down,  some  considerable 
quantities  of  sawdust,  cull  shingle,  spalts,  and  saps,  such 
as  usually  accumulate  about  such  a  mill,  had  not  been  re- 
moved, but  laid  about  the  mill,  and  extended  nearly  to  the 
defendant's  railroad  track.  On  that  day  the  sparks  from  the 
defendant's  engine  lodged  in  this  combustible  matter,  not  many 
feet  from  the  mill,  and  set  it  on  fire,  from  which  the  mill  and 
machinery  to  the  value  of  between  two  and  three  thousand 
dollars  was  completely  destroyed. 

The  plaintiff  brings  this  suit  for  his  damages  thus  sus- 
tained, basing  it  upon  the  negligence  of  the  defendant  in 
allowing  the  fire  to  escape  from  the  engine  in  such  manner  as 
to  set  the  plaintiff's  property  on  fire  and  destroy  his  buildings 
and  machinery. 

The  plea  was  the  general  issue.  The  cause  was  tried  at  the 
Ionia  circuit,  before  Judge  Smith,  with  a  jury,  and  the  plain- 
tifif recovered  a  judgment  for  the  sum  of  $2,115. 

The  defendant  brings  error.  The  record  contains  the  sub- 
etance  of  all  the  testimony  and  proceedings  had  in  the  case. 

Nine  of  the  twenty-three  assignments  of  error  raise  the 
question  as  to  whether  there  was  a  prima  facie  case  of  negli- 
gence alleged  and  proved  against  the  defendant. 

We  think  the  declaration  sufficiently  states  the  plaintiff's 
case,  and  that  the  evidence  of  plaintiff  made  out  a  prima 
facie  cause  against  the  defendant,  and  do  not  deem  it  neces- 


^28  Kendrick  v.  Towle.  [Mich. 

Bary  to  go  into  a  detail  of  the  testimony  in  considering  the 
question  upon  this  point,  but  proceed  to  consider  the  other 
questions  raised. 

The  second  ground  of  error  urged  by  defendant's  counsel  is 
that  the  court  refused  to  strike  out  the  evidence  of  plaintiff 
wherein  he  stated  he  did  not  consent  to  the  defendant  build- 
ing his  logging  road. 

We  do  not  think  either  party  was  prejudiced  by  the  rulings 
of  the  court  upon  this  subject,  or  by  the  testimony,  or  by  the 
rejection  of  that  offered.  It  is  not  entirely  clear  that  the  tes- 
timony had  any  bearing  in  the  case  either  way.  In  any  event, 
it  was  so  slight  as  to  have  done  no  harm.  In  so  far  as  it  was 
received,  we  are  not  prepared  to  say  it  was  objectionable  for 
the  purpose  offered:  Marquette,  H.,  &  0.  R.  R.  Co.  v.  Spear, 
44  Mich.  172;  38  Am.  Rep.  242.  The  ruling  by  the  court  re- 
fusing to  allow  defendant  to  show  plaintiff  did  not  object  to 
the  building  of  the  road  was  entirely  obviated,  if  erroneous, 
by  subsequently  allowing  the  defendant  to  make  the  proof  he 
desired. 

The  defendant  claims  as  his  third  ground  of  error  that  the 
court  refused  to  give  his  sixth  request  to  charge  by  stating  to 
the  jury  that  "  negligence  consists  in  the  failure  to  observe  that 
degree  of  care  which  the  law  requires  for  the  protection  of  the 
interests  likely  to  be  injuriously  affected  by  the  want  of  it." 

This  definition  was  given  by  one  of  the  ablest  elementary 
law-writers  of  modern  times,  and  has  received  the  approval  of 
this  court:  Flint  &  P.  M.  R\j  Co.  v.  Starlc,  38  Mich.  717; 
Brown  v.  Congress  &  B.  St.  R^y  Co.,  49  Id.  153;  and  we  see 
no  good  reason  for  withdrawing  that  approval. 

The  request  of  the  defendant's  counsel  which  the  court 
omitted  to  give  in  the  language  requested  was  as  follows: 
"Negligence  is  defined  to  be  the  omission  to  do  something 
which  a  reasonable  man,  guided  upon  those  considerations 
which  ordinarily  regulate  the  conduct  of  human  affairs,  would 
do,  or  doing  something  which  a  prudent  and  reasonable  man 
would  not  do." 

While  this  request  was  not  given  in  the  language  used,  it 
was  given  in  substance  by  the  judge  in  the  following  para- 
graph, viz.:  "In  answering  the  question  as  to  the  plaintiff's 
negligence,  the  same  as  in  answering  the  question  of  the  de- 
fendant's negligence,  involves  an  answer  to  the  inquiry.  What 
degree  of  care  was  required  of  him?  He  would  be  required  ta 
exercise   reasonable   care, — such   care   as  a  reasonable   and 


April,  1886.]  Kendbick  v.  Towle.  529 

prudent  man  would  exercise  under  like  circumstances;  and 
that  would  be  greater  care  with  the  road  there  than  without 
it.  The  degree  of  care  required  of  him  is  to  be  measured  by 
the  surrounding  circumstances,  and  the  interests  likely  to  be 
injuriously  affected  by  the  want  of  care  are  to  be  considered 
in  determining  the  degree  of  care  he  should  exercise.  He 
should  act  as  a  reasonable,  prudent,  and  careful  man,  in  view 
of  the  surroundings;  and  in  this  connection,  you  must  consider 
what  was  done  and  what  was  left  undone." 

We  think  the  degree  of  care  which  the  defendant  was  re- 
quired to  exercise  is  very  well  stated  in  the  above  charge  of 
the  learned  circuit  judge,  and  no  error  can  be  maintained 
under  the  defendant's  third  ground. 

The  defendant  insists,  as  his  fourth  reason  for  reversal,  that 
the  jury  allowed  interest  to  be  recovered  on  the  amount 
awarded  as  damages  from  the  time  of  the  fire;  and  that  the 
charge  of  the  court  permitted  it.  It  does  not  appear  that 
anything  more  than  actual  compensation  was  given  by  the 
jury  for  the  property  burned;  and  in  such  cases,  unless  the 
addition  of  interest  would  increase  the  damages  to  so  great  an 
extent  as  to  be  clearly  unjust  when  the  value  of  the  property 
is  taken  into  consideration,  no  reasonable  objection  can  be 
made  to  the  allowance  of  interest,  and  the  objection  in  this 
case  cannot  be  allowed  to  prevail:  Lucas  v.  Wattles,  49  Mich. 
383;  Hoyt  v.  Jeffers,  30  Id.  192;  Winchester  v.  Craig,  33  Id.  205; 
Beats  V.  Guernsey,  8  Johns.  446;  5  Am.  Dec.  348;  Johnson  v. 
Sumner,  1  Met.  172;  Derby  v.  Galhip,  5  Minn.  119;  Rhenke  v. 
Clinton,  2  Utah,  230;  Shepard  v.  Pratt,  16  Kan.  209;  Sedgwick 
on  Damages,  7th  ed.,  189,  note;  The  Amalia,  34  L.  J.,  N.  S. 
(Adm.),  21;  Parrott  v.  Knickerbocker  Ice  Co.,  46  N.  Y.  361; 
Mailler  v.  Express  Propeller  Line,  61  Id.  312;  Chapman  v. 
Chicago  &  N.  W.  R'y  Co.,  26  Wis.  295,  304;  7  Am.  Rep.  81;  Sai> 
oorn  V.  Webster,  2  Minn.  277;  Railroad  Co.  v.  Cobb,  35  Ohio  St. 
94;  City  oj  Chicago  v.  Allcoek,  86  111.  384;  Lincoln  v.  Claflinj 
7  Wall.  132,  139;  Old  Colony  R.  R.  v.  Miller,  125  Mass.  1;  28 
Am.  Rep.  194;  Frazer  v.  Bigelow  Carpet  Co.,  141  Mass.  126. 

The  fifth  ground  of  error,  and  which  was  much  relied  upon 
in  the  argument  of  defendant's  counsel  at  the  hearing,  was 
the  refusal  of  the  court  to  instruct  the  jury  as  asked  in  his 
thirteenth  request,  which  was  as  follows:  "If  the  jury  find 
that  the  plaintiff  suffered  and  permitted  spalts,  saps,  slits, 
cull  shingle,  shavings,  sawdust,  or  other  highly  combustible 
material,  which  were  made,  created,  or  manufactured  by  the 

Am.  St.  R«p..  Vou  I.— 84 


630  Kendrick  v.  Towle.  [Mich. 

operation  of  said  mill,  during  the  spring  of  1883,  to  be  and 
remain  massed  and  scattered  over  the  ground  next  to  and  ad- 
joining said  mill,  or  adjacent  thereto,  and  to  there  remain  till 
the  time  of  the  accident  complained  of,  without  removing  the 
same,  or  taking  any  precaution  to  prevent  the  igniting  of  fire 
therein,  and  the  spreading  thereof  to  said  mill;  and  that  if 
Buch  material  had  not  been  allowed  to  so  remain,  the  destruc- 
tion of  said  property  might  not  have  occurred  in  the  manner 
complained  of, — then  I  charge  you  that,  as  a  matter  of  law, 
the  plaintiff  is  guilty  of  contributory  negligence,  and,  re- 
gardless of  any  other  facts  in  this  case,  the  plaintiflf  cannot 
recover." 

The  consideration  of  this  point  involves  a  review  of  the 
whole  case,  and  makes  necessary  some  discussion  of  several 
matters  not  hereinbefore  referred  to. 

It  must  be  remembered  that  at  the  common  law  it  was  said: 
"  If  my  fire,  by  misfortune,  burns  the  goods  of  another  man, 
he  shall  have  his  action  on  the  case  against  me  ":  Roll.  Abr., 
Action  on  the  Case,  B,  tit.  5j  Lord  Duman,  in  Filliter  v.  Phip- 
pard,  11  Q.  B.  347,  63  Eng.  Com.  L.  347;  Tubervil  v.  Stamp,  1 
Salk.  13.  The  rigorous  rule  of  the  common  law  has  been 
somewhat  modified  by  statutes,  both  in  England  and  this 
country;  and  the  grounds  of  liability  are  now  held  to  be  neg- 
ligent acts  of  the  party  to  be  charged,  or  those  of  his  servants. 
The  defendant  in  this  case  holds  no  chartered  immunity 
under  legislative  enactments.  He  had  the  right  to  build  his 
railroad  track,  and  conduct  his  business  thereon  by  running 
trains  within  thirty  or  forty  feet  of  the  plaintiflf's  mill,  pro- 
pelled by  a  steam-engine.  It  was  a  lawful  but  hazardous 
business. 

It  is  a  matter  of  common  knowledge  that  moving  machinery 
propelled  by  steam  is  exceedingly  dangerous,  and  liable  to 
cause  unintentional  fires;  and  persons  owning  and  operating 
them  take  upon  themselves  large  responsibilities,  and  special 
precaution  against  injury  to  the  property  of  others  is  required 
to  be  observed.  The  care  and  caution  required  of  the  owner 
must  be  commensurate  with  and  in  proportion  to  the  risks 
assumed.  Anything  less  than  this  must  be  regarded  as  neg- 
ligence; and  if  injury  ensue  in  consequence  of  such  neligence, 
the  owner  will  be  liable:  Wharton  on  Negligence,  sees.  867  a, 
868,  869;  Shearman  and  Redfield  on  Negligence,  332,  note; 
2  Rorer  on  Railroads,  789;  1  Rorer  on  Railroads,  80;  Cooley 
on  Torts,  591;  Salmon  v.  Delaware,  X.,  &  W.  R.  R.  Co.,  38 


April,  1886.]  Kendrick  v.  Towle.  531 

N.  J.  L.  5;  20  Am.  Rep.  356;  Jones  v.  Festiniog  R.  W.  Co., 
L.  R.  3  Q.  B.  733.  " 

In  this  connection  it  may  be  observed  that  the  defendant 
seems  to  have  had  full  knowledge  of  the  dangerous  character 
of  the  engine;  that  it  threw  sparks  badly,  and  had  set  several 
fires  along  the  line  of  his  road,  and  once  to  the  refuse  matter 
in  the  mill-yard,  before  the  burning  of  plaintiflf's  mill;  also 
that  plaintiflf  had  notified  the  defendant  of  the  special  danger 
at  the  mill-yard;  and  that  defendant  had  told  him  he  had  a 
person  to  look  after  and  protect  the  mill  from  taking  fire  from 
sparks  from  defendant's  engine.  These  were  all  circumstances 
which  imposed  upon  defendant  additional  care,  and  more 
than  ordinary  diligence,  in  guarding  against  injury  at  the 
mill. 

The  obligation  of  care  to  prevent  the  fire  from  the  defend- 
ant's engine  burning  the  plaintifi''8  mill  rested  upon  the  de- 
fendant; and  the  fact  that  old,  combustible  matter  accumu- 
lated about  the  mill,  and  in  near  proximity  to  the  railroad, 
cannot  be  urged  as  contributory  negligence  on  the  part  of  the 
plaintiff.  He  had  a  right  to  use  the  offal  of  his  mill  to  fill  up 
the  waste  and  low  places  about  it,  just  as  he  was  accustomed 
to  do  before  the  railroad  was  built.  He  was  not  obliged  to 
guard  his  premises  to  relieve  the  defendant  from  liability  for 
his  negligent  acts:  Jones  v.  Mich.  Cent.  R.  R.  Co.,  59  Mich. 
437;  Alpern  v.  Churchill,  53  Id.  607;  Underwood  v.  Waldron, 
33  Id.  237;  Grand  Rapids  &  I.  R.  R.  Co.  v.  Martin,  41  Id. 
667;  Newson  v.  New  York  Cent.  R.  R.  Co.,  29  N.  Y.  390;  Fero 
v.  Buffalo  &  S.  L.  R.  R.  Co.,  22  Id.  209;  78  Am.  Dec.  178; 
Flynn  v.  San  Francisco  &  S.  J.  R.  R.  Co.,  40  Cal.  14;  6  Am. 
Rep.  595;  Philadelphia  &  R.  R.  R.  Co.  v.  Hendrickson,  80  Pa.  St. 
183;  21  Am.  Rep.  97;  St.  Joseph  &  D.  C.  R.  R.  Co.  v.  Chase, 
11  Kan.  47;  Salnwn  v.  Delaware,  L.,  &  W.  R.  R.  Co.,  38  N.  J.  L. 
5;  20  Am.  Rep.  356;  Grand  Trunk  R.  Co.  v.  Richardson,  91 
U.  S.  454;  Marquette,  H.,  &  0.  R.  R.  Co.  v.  Spear,  44  Mich. 
169;  38  Am.  Rep.  242;  Cooley  on  Torts,  592,  593;  Hoyt  v. 
Jeffers,  30  Mich.  182;  1  Thompson  on  Negligence,  136,  165. 

The  circuit  judge  charged  in  substance  that  the  jury  might 
determine  whether  or  not  the  plaintiff  could  allow  the  saw- 
dust from  his  mill  to  lie  on  his  own  premises,  and  if  so,  for 
how  long  a  time  before  the  plaintiff,  by  his  carelessness,  could 
.burn  up  his  mill  with  impunity;  that  the  plaintiff  could  not 
be  careless  with  his  own  property,  though  upon  his  own  prem- 
ises and  no  one  was  injured  thereby,  and  that  the  plaintiff 


532  Kendrick  v.  Towle.  [Mich. 

could  not  recover  unless,  in  the  management  of  his  own  prem- 
ises, he  ohserved  all  the  care  and  prudence  which  reasonably- 
careful  and  prudent  men  would  under  like  circumstances; 
that  they  must  take  into  consideration  this  combustible  mate- 
rial on  the  plaintiff's  premises, — the  amount  of  it,  where  it 
was,  how  it  was  situated,  the  length  of  time  it  was  left  there, 
whether,  after  the  road  was  built,  it  was  negligent  to  allow 
it  to  remain  there;  were  told  that,  "  if  he  suffered  and  per- 
mitted this  to  a  greater  extent  than  a  reasonably  careful  and 
prudent  man  would  under  like  circumstances,  he  could  not 
recover." 

This  was  all  erroneous.  Whether  he  was  careful  and  pru- 
dent was  a  matter  of  his  own  concern. 

The  circuit  court  also  instructed  the  jury  that  the  burden 
of  proof  was  upon  the  plaintiff  to  show  the  negligence  of  the 
defendant,  and  his  own  freedom  from  negligence;  and  unless 
they  were  satisfied  in  both  of  these  respects  by  the  preponder- 
ance of  evidence,  their  verdict  must  be  for  the  defendant. 
There  was  really,  upon  the  testimony,  no  question  of  contrib- 
utory negligence  in  the  case.  If  the  request  we  have  been 
considering  had  been  proper,  we  think  the  circuit  judge  sub- 
stantially gave  it,  and  much  more  of  the  same  character.  We 
do  not  think  the  request  should  have  been  given,  and  much 
that  was  said  by  the  court  upon  the  subject  was  not  warranted 
by  the  testimony;  but  inasmuch  as  the  verdict  was  for  the 
plaintiff,  and  the  exceptional  clauses  were  in  favor  of  the  de- 
fendant, neither  side  is  injured  by  the  charge. 

We  have  been  unable  to  find  any  error  in  the  case  preju- 
dicial to  the  defendant,  and  the  judgment  must  be  affirmed. 


Railboad  Company's  Liabilitt  fob  Injubies  Caused  bt  Firk  from 
LocoMonvES:  See  Burrouglis  v.  Housaiomc  R.  Ji.,  3^  Am.  Dec.  64,  and  note 
considering  the  question;  Hart  v.  Western  R.  R.,  46  Id.  719;  Baltimore  etc. 
R.  R.  V.  Woodruff,  59  Id.  72;  Sheldon  v.  Hudson  River  R.  R.,  67  Id.  155; 
Hull  V.  Sacramento  Valley  R.  R.,  73  Id.  656;  Macon  etc.  R.  R.  v.  McConnell, 
76  Id.  685;  Fero  v.  Buffalo  etc.  R.  R.,  78  Id.  178;  Bass  v.  Chicago  etc.  R.  /?., 
81  Id.  254;  Ryanv.  New  York  Central  R.  R.,  91  Id.  49;  Lackawanna  etc.  R.  R. 
V.  Doak,  91  Id.  166;  Frankfort  etc.  Turnpike  Co.  v.  Philadelpliia  etc.  R.  R.,  9S 
Id.  708;  Ohio  etc  R.  R.  v.  Shane/eU,  95  Id.  604;  Perley  v.  Eastern  R.  R.,  96 
Id-  645;  Martin  v.  Western  Union  R.  R.,  99  Id.  189;  Pennsylvania  R.  R.  v. 
Kerr,  1  Am.  Rep.  431;  Stdnvxg  v.  Erie  R'y,  3  Id.  673;  Bedell  v.  Long  Island 
R.  R.,  'k  Id.  688;  Toledo  etc.  R'y  v.  Pindar,  5  Id.  57;  Flynn  v.  San  Francisco 
etc  R.  R.,  6  Id.  595,  and  note;  Kesee  v.  Chicago  etc.  R.  R.,  6  Id.  643;  Oand^ 
V.  Chicago  etc  R.  R.,  6  Id.  682;  Kellogg  v.  Chicago  etc.  R'y,  7  Id.  69;  Jackson  v. 
Chicago  etc  R'y,  7  Id.  120;  Webb  v,  Rome  etc.  R.  R.,  10  Id.  389;  Spaulding 
V.  Chicago  etc.  R'y,  11  Id.  550;  Pent  v.  Tokdo  etc  R'y,  14  Id.  13;  CUmens  v. 


April,  1886.]  Grieb  v.  Cole.  533 

Hannibal  etc.  R.  R.,  14  Id.  460;  Atchison  etc.  R.  R.  v,  Stanford,  15  Id.  362; 
Burke  v.  Louisville  etc.  R.  R.,  19  Id.  618;  Salmonv.  Deknoareetc.  R.  R.,  20  Id. 
356;  Pennsylvania  R.  R.  v.  Hope,  21  Id.  10;  Delaware  etc.  R.  R.  v.  Salmon,  2.3 
Id.  214;  Rowell  v.  Railroad,  24  Id.  59;  Louisville  etc.  Ry  v.  Ridiardson,  32  Id. 
94;  Marquette  etc.  R.  R.  v.  Spear,  38  Id-  242;  RicJimond  etc.  R.  R.  v.  Medley, 
40  Id.  734;  Simmonds  v.  New  York  etc.  R.  R.,  52  Id-  587.  As  to  the  plain- 
tiff's contribatory  negligence  in  permitting  combustible  matter  to  remain 
upon  his  premises,  see  particularly  note  to  Burrouglia  v.  Housatonic  R.  R., 
38  Am.  Dec.  74;  Fero  v.  Buffalo  etc.  R.  R.,  78  Id.  178;  Ohio  etc.  R.  R.  v. 
ShanefeU,  95  Id.  504;  CJucago  etc.  R.  R.  v.  Simonson,  5  Am.  Rep.  155,  and 
note;  Kesee  v.  Chicago  etc.  R.  R.,  6  Id.  643;  Kellogg  v.  Chicago  etc.  Ry,  7  Id. 
69;  Salmon  v.  Delaware  etc.  R.  R.,  20  Id.  356;  Philadelphia  etc.  R.  R.  v.  Hen- 
drickson,  21  Id.  97;  Delaware  etc.  R.  R,  v.  Salmon,  23  Id.  214;  Murphy  v. 
Chicago  etc.  R'y,  30  Id.  721;  note  to  Louisville  etc.  R'y  v.  Richardson,  32  Id- 
98;  Richmond  etc.  R.  R.  v.  Medley,  40  Id.  734;  Pittsburgh  etc.  R'y  v.  Jones,  44 
Id.  334,  and  note;  KaJbfldsch  v.  Long  Island  R.  R.,  55  Id.  832;  PatUm  v.  St. 
Louis  etc  R'y,  56  Id.  446. 


Grieb  v.  Cole. 

[60  MICHIQAM,  897.  J 

Wabbautt  to  Which  Ordeb  for  Chattel  Eeters  Ksr>  Reserves  Faxx 
Benefit  itdst  be  of  Such  Leoal  Validitt  as  to  support  itn  action 
thereon  by  the  vendee  in  case  of  a  breach  thereof,  to  enable  the  vendor 
to  maintain  an  action  on  the  order. 

Warranty  is  not  Invalid  for  Incompleteness,  where  the  blanks  in  it  for 
the  date,  name  of  the  vendee,  and  subject-matter  are  not  filled  out,  but 
it  is  printed  on  the  back  of  an  order  for  the  chattel,  which  contains  these 
terms,  and  which  refers  to  the  warranty,  thereby  conettitnting  the  order 
and  warranty  one  instrument. 

Warrantor  is  Bound  bt  Printed  Signature,  which  he  adopts  as  his,  as 
fully  as  if  it  were  in  his  handwriting. 

Article  Delivered  mat  be  Shown  not  to  hate  been  Article  Pur- 
chased, under  the  general  issue,  in  an  action  to  recover  the  purchase 
price. 

Order  for  Machine  from  Dealer  Implies  that  It  shall  be  New,  not 
second-hand,  or  the  worse  for  wear;  and  the  dealer  cannot  impose  upon 
the  purchaser  a  second-hand  and  worn  machine,  whether  it  complies 
with  the  terms  of  his  warranty  or  not  as  to  being  good  and  well  made, 
and  that  it  will  do  as  good  work  as  any  other  machine  of  its  class. 

Assumpsit.    The  facts  are  stated  in  the  opinion. 

Oeorge  P.  Voorheis,  for  the  appellant. 

Chadtoick  and  Wood,  for  the  plaintiff! 

By  Court,  Champlin,  J.  On  May  1,  1883,  one  W.  D.  Mc- 
Laughlin, as  agent  for  plaintiff,  took  from  the  defendant  the 
following  order:  — 


S34  Grieb  v.  Cole.  [Mich. 

"  Gratiot,  Mich,,  May  2,  1883. 

"To  Charles  Grieb,  Port  Huron,  Mich.:  You  will  please 
ship  me,  on  or  about  the  first  day  of  June,  1883,  one  Buckeye 
light  mower,  to  Port  Huron,  for  which  I  agree  to  pay  you  $77, 
in  manner  as  follows  (reserving,  however,  the  full  benefit  of 
the  warranty  hereon  indorsed):  $35  cash,  with  freight  from 
Port  Huron,  on  delivery,  and  execute  approved  notes  as  fol- 
lows: $35,  payable  on  the  first  day  of  January,  1884,  with  in- 
terest at  seven  per  cent  from  delivery;  $42,  payable  on  the 
first  day  of  January,  1885,  with  interest  at  seven  per  cent 

from  delivery;  $ ,  payal)le  on  the day  of ,  188 — , 

with  interest  at  seven  per  cent  from  delivery.  For  the  pur- 
pose obtaining  credit  for  the  above,  I  certify  that  I  own  in  my 

own   name acres   of  land  in  the  township  of  Gratiot, 

county  of  St.  Clair,  and  state  of  Michigan,  of  which  eighty 
acres  are  improved,  and  the  whole  worth,  at  a  fair  valuation, 
five  thousand  dollars  over  and  above  all  encumbrances,  lia- 
bilities, and  legal  exemptions.  It  is  not  encumbered,  except 
one  thousand  dollars,  and  the  title  is  perfect.  I  also  own  five 
hundred  dollars'  worth  of  personal  property  over  and  above 
all  indebtedness,  and  not  exempt  from  execution  by  law. 

"  P.  0.  address,  Port  Huron. 

"  Taken  by  \V.  D.  McLaughlin,  agent. 

Hll 

"  Chas.  X  Cole." 

muk. 

Across  the  back  of  which  was  printed  a  blank  warranty, 
with  Grieb's  printed  name  appended,  as  follows:  — 

"  Whereas,  Mr. has  this  day  given  us  his  order  for  a 

;  we  hereby  agree,  in  consideration  of  said  order,  and 

the  faithful  performance  of  the  conditions  herein  mentioned, 

to  warrant  said one  year  to  be  good  and  well  made,  and 

to  do  as  good  work  as  any  other  machine  of  its  class. 

"  It  is  an  express  condition  of  this  warranty  that  the  direc- 
tions for  using  this  machine  shall  be  faithfully  followed,  and 
if  for  any  reason  it  fails  to  perform  as  warranted,  immediate 
notice  of  the  same  must  be  communicated  to  the  agent  to 
whom  the  order  is  given,  and  if  said  agent  should  fail  to 
make  the  machine  perform  as  warranted,  it  may  be  returned, 
and  money  or  note  refunded.  And  it  is  also  agreed,  should 
the  machine  be  used  from  day  to  day,  or  at  intervals,  or  set 
aside  before  or  after  use,  without  giving  said  agent  notice, 
then,  in  either  of  said  cases,  it  shall  be  conclusive  evidence 
that  the  machine  is  accepted,  and  the  warrant  is  at  an  end. 

"Dated Charles  Grieb." 


April,  1886.]  Grieb  v.  Cole.  535 

The  agent  delivered  this  so-called  order  to  the  plaintiff, 
who  claims  that  he  accepted  it,  and  delivered  to  the  defend- 
ant the  said  machine  on  the  eighteenth  day  of  July,  1883,  but 
the  defendant  has  neither  paid  for  said  machine,  nor  executed 
and  delivered  the  notes;  and  after  the  time  expired  when  the 
note  for  thirty-five  dollars,  mentioned  in  the  order,  would  have 
matured  had  it  been  executed,  the  plaintiff  brought  suit  in 
justice's  court  to  recover  the  amount  claimed  to  be  due  at 
that  time. 

The  plaintiff's  declaration  was  in  writing,  and  besides  the 
common  counts  in  assumpsit,  contained  a  special  count,  and 
setting  out  the  substance  of  the  above  order,  and  alleging  a 
delivery  of  the  machine  ordered. 

The  plea  was  the  general  issue. 

It  is  always  proper,  in  construing  a  contract,  to  take  into 
consideration  the  position  which  the  parties  occupied,  and  the 
circumstances  under  which  the  agreement  was  entered  into. 

The  plaintiff  resided  at  Port  Huron,  and  was  engaged  in 
the  business  of  supplying  mowing-machines  to  farmers.  He 
was  not  a  manufacturer,  but  took  written  orders,  and  pur- 
chased the  machines  to  fill  such  orders. 

Defendant  is  a  farmer,  residing  in  the  vicinity  of  Port 
Huron,  and  on  the  second  day  of  May,  1883,  signed  the  order 
above  set  out,  and  delivered  it  to  plaintiff's  agent. 

On  the  trial  the  plaintiff  offered  in  evidence  the  aforesaid 
order,  and  warranty  thereon  indorsed,  to  which  the  defendant 
objected,  because  not  admissible  under  the  declaration,  and  as 
immaterial  to  the  issue.  The  objection  was  overruled,  and 
this  constitutes  defendant's  first  assignment  of  error. 

This  objection  is  based  upon  the  idea  that  the  paper  is  in- 
complete; that  the  order  refers  to  the  warranty  on  the  back, 
and  reserves  the  full  benefit  of  such  warranty,  and  it  appears 
that  the  blanks  in  the  warranty  were  not  filled  out;  and  it  is 
claimed,  and  I  think  rightly,  that  the  warranty  indorsed  must 
be  of  such  legal  validity  as  to  support  an  action  thereon  by 
Cole  in  case  of  a  breach  thereof. 

By  reference  to  the  warranty  indorsed,  it  will  be  observed 
that  the  name  of  Mr.  Cole,  and  the  description  of  the  machine 
ordered,  are  omitted,  as  well  as  the  date.  If  the  warranty 
fitood  alone,  there  could  be  no  doubt  that  it  would  be  so  far  in- 
complete as  to  render  it  invalid,  because  thus  standing  it  lacks 
the  essential  qualities  of  naming  the  party  to  be  indemnified 
and  the  subject-matter.  It  does  not  appear  from  it  whether 
the  machine  is  a  steam-thrasher  or  a  mowing-machine. 


686  Grieb  v.  Cole.  [Mich. 

But  the  reference  in  the  order  to  the  warranty  indorsed 
thereon  constituted  the  order  and  warranty  one  instrument, 
and  when  read  together  no  ambiguity  or  uncertainty  appears. 
The  party  to  whom  the  warranty  is  made  is  the  party  making 
the  order,  and  the  machine  is  the  machine  described  in  the 
order,  and  the  date  of  the  order  supplies  the  date  to  the  war- 
ranty, for  they  are  contemporaneous,  and  the  warranty  has 
the  same  force  and  effect  as  if  embodied  in  the  order  itself. 

The  warrantor  is  bound  by  the  printed  signature,  which  he 
adopts  as  his  as  fully  as  if  it  was  in  his  handwriting. 

The  order  and  warranty  were  properly  admitted  in  evidence 
at  that  stage  of  the  case. 

The  plaintiflf  gave  evidence  tending  to  show  that  he  had  com- 
plied with  the  contract  on  his  part,  and  had  delivered  the  ma- 
chine at  Port  Huron  within  the  terms  and  meaning  of  the 
contract,  and  also  had  requested  defendant  to  execute  the 
notes,  and  that  defendant  declined  to  accept  such  delivery,  or 
to  execute  and  deliver  the  notes.  The  fact  of  delitrery  was 
controverted  by  defendant. 

The  defendant  also  offered  testimony  tending  to  show  that 
the  mower  which  plaintiff  claimed  to  have  delivered  to  de- 
fendant was  a  second-hand  machine,  showing  considerable 
wear;  that  the  worn  parts  had  been  stripped  and  filled  with 
paint  in  the  wood-work,  and  parts  of  it  had  been  painted  over 
after  having  been  used  and  worn;  that  the  axles  had  old  grease 
upon  them,  one  set  of  knives  were  chipped  and  broken,  and 
the  tongue  and  neck-yoke  considerably  worn;  that  the  entire 
machine  had  been  used  one  season  somewhat;  but  the  court, 
on  objection  of  plaintiff's  counsel,  excluded  this  evidence  as 
not  admissible  under  the  plea,  and  not  tending  to  show  the 
condition  of  the  machine  when  delivered.  The  latter  portion 
of  this  ruling  was  based  upon  the  fact  that  the  witnesses  by 
whom  these  facts  were  sought  to  be  proved  did  not  make  the 
examination  of  the  machine  until  after  the  trial  in  the  justice's 
court,  in  April,  1884.  The  evidence,  however,  showed  that  on 
the  21st  of  July,  1883,  which  was  three  days  after  plaintiff 
claims  to  have  sent  the  machine  to  defendant's  farm  and  de- 
manded the  notes,  defendant  gave  written  notice  to  plaintiff 
that  he  refused  to  purchase  it,  and  that  it  was  there  at  plain- 
tiff's risk,  and  to  come  and  take  it  away;  and  the  testimony 
was,  that  it  had  not  been  used  since.  There  was  therefore  no 
reason  for  excluding  the  testimony  on  this  ground. 

The  court  erred  also  in  excluding  the  evidence  upon  the 


April,  1886.]  Godfrey  v.  White.  637 

other  ground  stated.  It  was  proper  for  the  defendant,  under 
the  plea  of  the  general  issue,  to  prove  that  the  article  delivered 
was  not  the  article  he  purchased.  He  did  not  order  or  pur- 
chase a  second-hand  mowing-machine,  or  one  that  had  been 
in  use  and  worn;  but  the  order,  taken  in  connection  with  the 
circumstances  under  which  it  was  made,  called  for  a  new  ma- 
chine. A  purchase  of  a  machine  from  a  dealer  implies  that 
the  machine  sold  shall  be  new, — that  is,  not  second-hand,  or 
the  worse  for  wear, — and  under  such  an  order  the  dealer  could 
not  impose  upon  the  purchaser  a  second-hand  and  worn  arti- 
cle, whether  it  complied  with  the  terms  of  the  warranty  or 
not  as  to  being  good  and  well  made,  and  will  do  as  good  work 
as  any  other  machine  of  its  class. 

This  evidence,  if  believed,  fairly  met  and  rebutted  the  plain- 
tiflf's  case,  and  tended  directly  to  sustain  the  defendant's  plea, 
which  put  in  issue  each  and  every  allegation  of  the  plaintiff's 
declaration:  Rodman  v.  Guilford,  112  Mass.  405. 

The  judgment  must  be  reversed  and  a  new  trial  ordered. 

Wasbaktt  or  Fitness  tor  Particular  PuRPoaE  is  Implied,  when  an 
article  is  ordered  from  a  manufacturer  for  a  particular  purpose:  Oetljf  r. 
Rountree,  64  Am.  Dec.  138,  and  note;  Fide  v.  Tank,  73  Id.  737;  note  to  Bragg 
V.  MmrUl,  24  Am.  Rep.  104;  Harris  v.  Waile,  31  Id.  694. 


Godfrey  v.  White. 

[60  MlCHIQAN,  -MS.] 

CooRTS  OF  EQurrr  have  Exclusive  Jurisdiction  or  Suits  for  PABrrnoir 
or  Personal  Propertt,  even  though  the  complainant's  title  is  denied  by 
the  defendant. 

Remedy  at  Law  is  Exclusive  only  when  the  rights  of  parties  spring  from 
legal  duties  and  obligations;  and  even  in  those  cases,  if  the  legal  remedy 
is  inadequate  to  afford  the  proper  relief,  and  property  is  wrongfully  with- 
held to  satisfy  the  just  claims  of  parties,  and  beyond  the  reach  of  the 
law,  equity  may  be  successfully  appealed  to,  and  will  furnish  the  neces- 
sary assistance  in  most  cases  to  prevent  a  failure  of  justice. 

Aocx>UNTiNa  IS  Prerequisite  to  Suit  for  Partition  or  Personal  Prop- 
EBTT  only  where  a  partnership  relation  exists  between  the  parties  as  to 
the  property  sought  to  bo  partitioned,  or  there  is  some  agreement,  ex- 
press or  implied,  between  them  that  an  accounting  shall  be  had  before 
such  division. 

Bill  for  partition  of  personal  property.    The  facts  are  stated 
in  the  opinion. 

John  E.  Morej  for  the  complainant. 

Blair^  Kingsley,  and  Kleinhans,  for  the  defendant. 


538  Godfrey  v.  White.  [Mich. 

By  Court,  Sherwood,  J.  On  the  twenty-third  day  of  April, 
1877,  the  defendant  and  Amos  Rathbone  were  the  joint  owners 
of  thirty  shares  of  the  capital  stock  of  the  Continental  Im- 
provement Company,  a  corporation  organized  under  the  laws 
of  the  state  of  Pennsylvania. 

The  said  Rathbone  and  the  defendant  owned  equal  interest 
in  the  stock,  but  it  was  all  issued  to  defendant,  and  is  still 
held  by  him,  and  stands  in  his  name  upon  the  books  of  the 
company. 

Amos  Rathbone  died  in  1882,  leaving  a  will,  which  was 
probated  in  Kent  County  in  December,  1882,  and  executors 
named  in  the  will  were  duly  appointed  and  qualified,  and  as 
such  sold  and  duly  transferred,  for  the  consideration  of  $775, 
the  interest  of  said  Rathbone's  estate  to  the  complainant,  on 
the  ninth  day  of  July,  1883. 

After  this  purchase  the  complainant  applied  to  the  defend- 
ant for  a  division  of  the  stock,  which  was  refused,  and  there- 
upon the  complainant  filed  the  bill  in  this  case  for  the  pur- 
pose of  obtaining  the  division  asked  for,  setting  forth,  among 
others,  the  foregoing  facts. 

The  defendant  appeared  and  answered,  contenting  himself 
with  a  simple  denial  of  the  facts  set  forth  in  the  bill  which 
would  show  him  guilty  of  the  injustice  charged,  and  adding 
thereto  the  following  averment,  viz.:  "And  this  defendant, 
further  answering,  says  that,  in  regard  to  his  dealings  with 
the  complainant  in  the  stock  of  said  corporation,  he  caused 
to  be  transferred,  many  years  ago,  all  the  stock  he  paid  for 
either  to  this  defendant  or  said  corporation;  that  the  certifi- 
cate standing  in  his  name  was  the  individual  property  of  this 
defendant;  that  the  complainant  never  bargained  for  or  paid 
any  consideration  for  the  same,  or  any  part  thereof,  either  to 
this  defendant  or  to  said  corporation;  and  the  defendant  fur- 
ther avers  whatever  complainant's  rights  are  they  are  subject 
to  the  equities  existing  between  the  defendant  and  the  said 
Amos  Rathbone's  estate." 

The  cause  was  heard  in  the  Kent  circuit,  before  Judge  Mont- 
gomery, upon  pleadings  and  proofs,  who  rendered  a  decree 
granting  the  relief  prayed. 

We  think  the  decree  made  was  entirely  proper  in  the  case. 

The  testimony  tends  to  show  that  for  a  series  of  years  pre- 
vious to  April,  1877,  the  said  Amos  Rathbone  and  defendant 
did  business  together  of  all  kinds,  nearly;  perhaps  not  as  part- 
ners, but  made  joint  purchases  of  land  and  other  property. 


April,  1886.]  Godfrey  v.  White.  539 

holding  the  same  either  as  joint  tenants  or  tenants  in  com- 
mon, taking  the  title  to  such  property  at  the  time  of  purchase, 
sometimes  in  the  name  of  one  and  sometimes  in  the  name  of 
the  other,  and  often  in  the  name  of  both,  but  in  all  of  which 
the  interest  of  the  parties  was  equal.  In  this  manner,  it 
seems,  the  property  sought  to  be  partitioned  was  purchased. 

On  the  said  23d  of  April,  1877,  a  settlement  was  made 
between  the  parties,  and  all  the  property  divided  except  the 
above-mentioned  thirty  shares  of  Continental  Improvement 
stock,  fifty-eight  shares  of  the  Grand  Rapids  and  Indiana 
railroad  stock,  and  twenty  shares  of  Chicago  and  Michigan 
Lake  Shore  railroad  stock. 

These  three  items  of  property  were  not  divided  at  the  time 
of  the  settlement,  and  this  statement  appears  in  the  agree- 
ment made  between  the  parties  at  the  time  of  the  settlement 
in  relation  thereto:  "  There  is  certain  property  [meaning 
these  three  items  of  stock]  which  it  is  inconvenient  at  this ' 
time  to  divide;  but  it  is  hereby  agreed  between  the  parties 
hereto  that  said  Rathbone  and  said  White  are  the  joint  and 
equal  owners  thereof,  and  that  the  same  shall  be  divided 
equally  between  them  as  soon  as  practicable." 

In  the  division  made  each  party  took  a  portion  of  the  assets 
as  his  share,  and  each  assumed  a  portion  of  the  liabilities  of 
the  parties,  each  guaranteeing  the  other  against  the  payment 
of  the  portion  he  assumed.  At  the  same  time  the  following 
agreement  was  made:  "Whereas,  Amos  Rathbone  and  George 
H.  White  have  this  day  settled  up  their  matters  and  divided 
their  property,  which  they  have  held  and  owned  together; 
and  whereas,  they  have  operated  together  for  a  number  of 
years,  and  taken  conveyances  of  land,  sometimes  in  the  name 
of  said  Rathbone  and  sometimes  in  the  name  of  said  White, 
and  the  same  has  been  from  time  to  time  conveyed,  some- 
times with  warranty,  and  the  said  Amos  Rathbone  and  George 
H.  White  have  been  and  are  also  executors  of  the  estate  of 
A.  D.  Rathbone,  deceased,  — 

"  Now,  therefore,  the  said  Amos  Rathbone  and  the  said 
George  H.  White,  in  consideration  of  the  premises,  each  with 
the  other  agree  that  they  shall  mutually  and  equally  pay  and 
discharge  all  obligations  and  liabilities  which  may  have  or 
will  hereafter  grow  or  arise  out  of  the  aforesaid  business  and 
trust,  other  than  those  respectively  aforesaid  assumed  by  them 
in  a  certain  contract  of  even  date  herewith,  executed  by  the 
parties  hereto." 

The  particular  reasons  why  it  was  not  convenient  to  make 


540  Godfrey  v.  White.  [Mich. 

division  of  the  three  items  of  stock  at  the  time  of  the  settle- 
ment does  not  appear  in  the  record.  It  is  therefore  quite 
probable  that  it  was  immaterial  to  this  issue.  Neither  does  it 
appear  that  the  defendant  ever  had  any  lien  or  claim  to  the 
estate's  undivided  half,  nor  that  the  stock  was  liable  in  any 
way  to  any  claim  made  by  the  defendant. 

The  counsel  for  defendant  depends  in  his  brief  upon  four 
grounds:  1.  That  complainant's  remedy  is  complete  at  law, 
and  that  equity  has  no  jurisdiction;  2.  That  the  contract 
under  which  complainant  derives  title,  between  Rathbone  and 
White,  is  entire,  and  cannot  be  split  up  so  as  to  allow  the  com- 
plainant, the  assignee  of  Rathbone's  rights,  to  call  for  a  di- 
vision of  the  Continental  Improvement  stock  without  the  rest 
of  the  undivided  stock  being  embraced  in  the  division  called 
for;  3.  That  White  has  a  right  to  an  accounting  between  the 
Amos  Rathbone  estate  and  himself,  claiming  that  Rathbone 
has  not  paid  the  liabilities  assumed  by  him  in  the  contract  of 
settlement;  4.  That  the  contract  to  divide  the  stock  is  entire, 
and  that  White  is  not  bound  to  perform  his  part  until  Rath- 
bone has  or  is  ready  and  willing  to  perform  his,  and  that  the 
former  is  not  bound  to  divide  any  part  of  the  stock  until  Rath- 
bone or  his  executors  are  willing  to  divide  the  remainder. 

Courts  of  equity  have  exclusive  jurisdiction  of  suits  for  the 
partition  of  personal  property:  Freeman  on  Cotenancy,  sec. 
426;  Smith  v.  Smith,  4  Rand.  102;  Conover  v.  Earl,  26  Iowa, 
167;  Marshall  v.  Crow's  AdmW,  29  Ala.  278;  Irwin  v.  King,  6 
Ired.  219;  Crapster  v.  Griffith,  2  Bland,  5;  Tinney  v.  Stebbins, 
28  Barb.  290;  Low  v^  Holmes,  17  N.  J.  Eq.  148.  This  is  true, 
even  though  the  defendant  denies  the  complainant's  title: 
Weeks  v.  Weeks,  5  Ired.  Eq.  118;  47  Am.  Dec.  358;  Smith  v. 
Dunn,  27  Ala.  316;  Edwards  v.  Bennett,  10  Ired.  363.  We  do 
not  think  the  first  point  relied  upon  by  defendant  can  be 
maintained.  The  demurrer  claimed  in  the  answer  upon  that 
ground  does  not  appear  to  have  been  brought  to  a  hearing  at 
the  circuit.  This  is  not  a  case  to  enforce  a  contract  for  the 
sale  and  transfer  of  stock,  neither  is  it  a  case  to  compel  a  com- 
pany to  transfer  stock  on  its  books  to  the  name  of  the  assignee 
or  purchaser,  but  a  bill  to  compel  the  performance  of  an  equi- 
table duty  springing  up  and  having  its  origin  in  the  equitable 
relation  of  the  parties  to  the  property  in  question  after  the 
parties  have  acknowledged  in  writing  the  existence  of  such 
equitable  relations. 

It  is  only  when  the  rights  of  parties  spring  from  legal  duties 
and  legal  obligations  that  the  law  steps  in  and  furnishes  the 


I 


April,  1886.]  Godfrey  v.  White.  541 

remedy  for  their  enforcement,  to  the  exclusion  of  proceedings 
in  equity;  and  even  in  those  cases  where  the  legal  remedy  is 
inadequate  to  afford  the  proper  relief,  and  property  is  wrong- 
fully withheld  to  satisfy  the  just  claims  of  parties,  and  beyond 
the  reach  of  the  law,  equity  may  be  successfully  appealed  to, 
and  will  furnish  the  necessary  assistance,  in  most  cases,  to  pre- 
vent a  failure  of  justice:  Low.  Transf.  Stocks,  sees.  223,  225. 

The  second  and  fourth  grounds,  above  stated,  upon  which 
the  defendant  relies,  furnish  no  defense  in  this  case.  They 
are  not  applicable  to  the  facts  stated,  and  so  far  as  the  inter- 
est of  Rathbone  and  White  in  the  three  items  of  stock  is  con- 
cerned, it  is  substantially  conceded;  but  whether  it  is  or  not, 
the  record  shows  it  was  not  a  partnership  one. 

The  thirty  shares  of  Continental  Improvement  stock  was  an 
entire,  distinct,  and  separate  parcel  of  property,  having  no 
natural  or  necessary  connection  whatever  with  the  stock  in 
the  other  two  railroad  companies,  and  would,  in  any  sale  au- 
thorized in  legal  proceedings,  ordinarily  be  required  to  be  sold 
separate  from  the  other  two  items  of  undivided  property,  and 
could  as  well  be  partitioned  by  itself  as  in  connection  with  the 
other  two  parcels,  and  in  fact,  there  might  be  very  satisfactory 
reasons  why  a  separate  partition  should  be  made. 

No  lien  was  created  in  favor  of  either  of  the  parties  as 
against  the  other  under  the  relation  in  which  they  held  the 
property,  and  none  was  created  under  the  contract  of  settle- 
ment; and  had  there  been  any  from  any  other  source,  it  could 
not  have  affected  the  right  of  complainant  to  the  partition 
asked,  but  only  the  extent  of  his  interest  in  the  property: 
Low.  Transf.  Stocks,  sees.  138-141;  Butler  v.  Roys,  25  Mich. 
53;  12  Am.  Rep.  218;  Green  v.  Arnold,  11  R.  I.  364;  23  Am. 
Rep.  466;  Hoyt  v.  Day,  32  Ohio  St.  101;  Earlea  v.  Headers,  1 
Baxt.  248. 

The  defendant's  third  ground  of  defense  cannot  be  main- 
tained. It  is  only  when  the  partnership  relation  exists  be- 
tween the  parties  as  to  the  property  sought  to  be  partitioned, 
or  there  is  some  agreement,  express  or  implied,  between  them 
that  an  accounting  shall  be  had  before  a  division  of  the  prop- 
erty can  be  made,  that  the  rule  contended  for  applies.  The 
record  fails  to  show  the  first,  and  the  latter  is  not  claimed. 
This  necessarily  disposes  of  the  case,  and  the  decree  at  the 
circuit  must  be  affirmed,  with  costs. 

JuRisDicnoN  or  EQumr  to  Partition  Personal  Propertt:  See  Oudtjell 
T.  Mead,  40  Am.  Dec.  120,  and  note;   Weeks  v.  Weelut,  47  Id.  358,  362. 


542  Smith  v.  Peninsulas  Car  Works.  [Mich. 

Smith  v.  Peninsular  Car  "Works. 

f60  Michigan,  SOL] 
PnOPHIETOBS  OF  LaROB   MaNUFACTCRINQ    EsTABLISUMET4T3  ABE    BoUND  TO 

FcKNiSH  SuiTABLK  Place  in  which  work  may  be  performed  with  a  rea- 
sonable degree  of  safety  to  the  persons  employed,  and  without  exposure 
to  dangers  that  do  not  come  within  the  obvious  scope  of  the  employment 
in  the  business  as  usually  carried  on. 

Proprietors  of  Manufactubino  Establishments  should  Inform  Ser- 
vants OF  Latent  Risks,  which  the  servants  from  ignorance  or  inexpe- 
rience are  incapable  of  understanding  and  appreciating,  or  which  they 
would  not  be  likely  to  know,  and  of  which  the  proprietors  or  their  fore- 
men are  presumed  to  know  and  be  familiar. 

Proprietors  of  Manttfacturing  Establishments  will  not  Dlschargb 
Themselves  from  Obligation  towards  Servants,  by  informing  the 
servants  generally  that  the  service  engaged  in  is  dangerous,  especially 
where  the  servants  are  persons  who  neither  by  experience  nor  education 
have,  or  would  be  likely  to  have,  any  knowledge  of  such  facts;  but  the 
servants  should  be  informed,  not  only  that  the  service  is  dangerous,  and 
of  the  perils  of  a  particular  place,  but  where  extraordinary  risks  are 
or  may  be  encountered,  if  known  to  the  masters,  or  should  be  known  by 
them,  the  servants  should  be  warned  of  these,  their  character  and  extent, 
so  far  as  possible. 

Employer  is  not  Responsible  to  Servant  for  Injitry  Received  is 
Employment  resulting  from  those  dangers  which  are  the  subject  o! 
common  knowledge,  or  which  can  be  readily  seen  by  common  observa« 
tion;  but  where  the  danger  to  be  avoided  requires  a  knowledge  of  scien- 
tific facts,  or  is  the  result  of  well-known  chemical  combinations  among 
well-educated  men,  if  known  to  the  employer,  or  should  be  known  by 
him,  the  employer  will  be  responsible  to  the  servant  for  an  injury  re- 
sulting therefrom,  if  he  neglects  to  notify  the  servant  thereof. 

Negligence  or  Carelessness  on  Part  of  Workmen  in  Manufacturinn 
Establishment  is  not  Shown,  so  as  to  defeat  an  action  brought  by  owe 
of  them  against  the  employer  for  an  injury  received  in  the  employmeat, 
from  the  fact  that  they  whistled,  sang,  laughed,  and  talked  while  ii.  the 
performance  of  their  work. 

Servant  cannot  be  Charged  with  Contributory  Negligence  in  Cash 
of  Injury  Received  in  Employment,  or  be  said  to  have  assumed  all 
the  risks  and  perils,  ordinary  and  extraordinary,  incident  to  the  employ- 
ment, in  the  absence  of  evidence  showing  the  proper  notice  given  by  the 
agent  in  charge,  or  knowledge  on  the  part  of  the  servant. 

Case.     The  opinion  states  the  facts. 

Sumner  Collins  and  Charles  B.  Lothrop,  for  the-  appellant. 

C.  A,  Kent,  for  the  respondent. 

By  Court,  Sherwood,  J.  The  plaintiflF  's  intestate,  Adelbert 
A.  Smith,  was  her  husband. 

He  was  a  laborer,  and  worked  for  the  defendant  during  the 
year  1882,  and  until  he  died,  in  January,  1885,  His  busi- 
ness was  principally  that  of  a  molder,  and  he  k/orked  in  the 


April,  1886.]     Smith  v.  Peninsular  Car  Works.  543 

defendant's  shop  at  Adrian.  The  work  of  molding  and  carry- 
ing molten  iron  was  ordinarily  done  in  two  rooms,  separate 
from  each  other,  each  being  furnished  with  all  appliances  for 
melting  iron  and  molding. 

On  the  day  in  question,  the  fires  had  gone  out  in  the  room 
in  which  deceased  was  employed,  and  he  was  ordered  by  the 
foreman,  who  had  entire  charge  of  the  men,  to  go  with  two 
others  to  get  a  ladle  of  iron  from  the  other  room,  and  bring  it 
into  the  room  where  he  was  employed.  To  do  this  it  was 
necessary  to  go  out  of  doors,  and  into  the  open  air.  On  this 
day,  the  ground  over  which  it  was  necessary  to  pass  was  cov- 
ered with  ice,  and  water  standing  on  the  ice,  making  it  very 
slippery,  and  there  was  no  other  way  to  get  this  iron. 

On  returning,  and  while  passing  over  the  ice,  the  man  in 
the  rear  slipped  down,  and  the  molten  iron  was  brought  into 
contact  with  the  water  and  ice,  from  which  a  violent  explosion 
ensued,  and  deceased  was,  with  one  of  the  others,  so  injured 
that  they  died  shortly  afterwards,  having  made  no  statement 
of  the  manner  and  cause  of  the  accident,  and  there  was  no 
eye-witness  to  the  accident  but  the  man  who  slipped  down. 
The  undisputed  testimony  was,  that  deceased  was  a  good  and 
careful  man. 

The  suit  is  for  damages  arising  out  of  Smith's  death.  The 
negligence  charged  against  defendant  is  that  the  passage-way 
was  not  safe,  and  that  Smith  was  not  notified  of  the  danger 
arising  from  the  contact  of  molten  iron  with  ice  or  water. 

Plaintiflf's  claim  is  that  this  was  not  a  proper  and  suitable 
place  to  perform  deceased's  labor,  and  that  the  danger  of  an 
explosion  from  contact  of  ice  with  molten  iron  was  a  latent 
danger,  of  which  deceased  was  ignorant,  and  one  not  within 
the  usual  hazards  of  the  employment,  and  that  defendant  was 
guilty  of  negligence  in  sending  him  to  do  work  in  such  a  place, 
and  in  not  informing  him  of  the  danger  of  a  passage  over  the 
icy  way  with  the  molten  iron.  The  defense  is,  that  the  pas- 
sage-way was  safe;  that  its  dangers  were  open,  and  were  vol- 
untarily assumed;  that  Smith  was  as  likely  to  know  aa 
defendant's  managers  of  the  effect  of  the  meeting  of  molten 
iron  with  water  or  ice;  and  lastly,  that  the  proof  shows  that 
Smith's  death  resulted  from  his  own  carelessness,  and  that  of 
Ray.  When  the  plaintiff  rested,  the  court  below  directed  a 
verdict  for  defendant.  There  are  several  exceptions  as  to  the 
rejection  of  testimony,  but  the  main  question  is  on  the  charge 
of  the  court  directing  the  verdict. 


644  Smith  v.  Peninsular  Cak  Works.  [Mich. 

When  the  case  was  heard,  my  impressions  favored  the  ruling 
made  by  the  judge  of  the  superior  court,  but  a  careful  exam- 
ination of  the  record,  and  more  thorough  investigation  of  the 
case,  has  very  essentially  modified  those  impressions.    Indeed, 

1  think  the  facts  and  circumstances  stated  by  the  witnesses 
under  the  law  applicable  thereto  required  the  case  to  go  to  the 
jury. 

It  has  come  to  be  very  well  settled  that  in  large  manufac- 
turing institutions  like  that  of  the  defendant  the  proprietors 
or  masters  are  bound  to  furnish  a  suitable  place  in  which  work 
may  be  performed  with  a  reasonable  degree  of  safety  to  the 
persons  employed,  and  without  exposure  to  dangers  that  do 
not  come  within  the  obvious  scope  of  the  employment  in  the 
business  as  usually  carried  on:  Swoboda  v.  Ward,  40  Mich.  423; 
Huizega  v.  Cutler  and  Savidge  Lumber  Co.,  51  Id.  272;  Coomba 
V.  New  Bedford  Cordage  Co.,  102  Mass.  572;  3  Am.  Rep.  506; 
Parkhurst  v.  Johnson,  50  Mich.  70;  45  Am.  Rep.  28;  Smith  v. 
Oxford  Iron  Co.,  42  N.  J.  L.  467;  36  Am.  Rep.  535;  Baker  v. 
Allegheny  Valley  R.  R.  Co.,  95  Pa.  St.  211;  40  Am.  Rep.  634; 
Cooley  on  Torts,  553. 

It  is  presumed  that  the  master  or  foreman  placed  in  charge 
of  and  conducting  a  manufacturing  business  knows  and  is 
familiar  with  the  dangers,  latent  and  patent,  ordinarily  accom- 
panying that  business;  and  if  there  are  latent  risks  that  a 
ecrvant  is,  from  ignorance  or  inexperience,  not  capable  of 
understanding  and  appreciating,  or  which  he  would  not  be 
likely  to  know,  the  master  should  inform  him  of  such  dangers: 
Wharton  on  Negligence,  sec.  209;  Coombs  v.  New  Bedford  Cord- 
age Co.,  102  Mass.  584;  3  Am.  Rep.  506;  Cooley  on  Torts,  549; 

2  Thompson  on  Negligence,  979;  Strahlendorf  y.  Rosenthal,  30 
Wis.  675;  O'Connor  v.  Adams,  120  Mass.  427;  McGowan  v. 
La  Plata  Mining  Co.,  3  McCrary,  397;  Bowling  v.  Allen,  74 
Mo,  13;  41  Am.  Rep.  298;  Hathaway  v.  Michigan  Cent.  R.  R. 
Co.,  51  Mich.  253;  47  Am.  Rep.  569;  St.  Louis  &  S.  E.  R'y  Co. 
V.  FoZmtts,  56  Ind.  511;  Wood  on  Master  and  Servant,  sec. 
349;  Michigan  Cent.  R.  R.  Co.  v.  Smithson,  45  Mich.  212;  Chi- 
cago &  N.  W.  R'y  Co.  V.  Bayfield,  37  Id.  205;  O'Connor  v.  Adams, 
120  Mass.  427. 

I  do  not  understand  that  the  obligation  of  the  defendant 
would  be  discharged  by  informing  the  servant  generally  that 
the  service  engaged  in  is  dangerous;  especially  where  the  ser- 
vant is  a  person  who,  neither  by  experience  nor  education, 
has,  or  would  be  likely  to  have,  any  knowledge  of  the  perils 


April,  1886.]     Smith  v.  Peninsular  Car  Works.  545 

of  the  business,  either  latent  or  patent;  but  that,  in  such  case, 
the  servant  should  be  informed,  not  only  that  the  service  is 
dangerous,  and  of  the  perils  of  a  particular  place,  but  where 
extraordinary  risks  are  or  may  be  encountered,  if  known  to 
the  master,  or  should  be  known  by  him,  the  servant  should 
be  warned  of  these,  their  character  and  extent,  so  far  as  pos- 
sible. It  seems  to  me  the  value  of  human  life,  and  the  duty 
of  the  master  in  affording  reasonable  protection  to  persons 
while  under  his  direction,  cannot  be  held  to  require  less  than 
this:  Cooley  on  Torts,  554;  Coombs  v.  New  Bedford  Cordage 
Co.,  102  Mass.  572,  596;  3  Am.  Rep.  506;  East  Saginaw  City 
R'y  Co.  v.  Bohn,  27  Mich.  603;  Railroad  Co.  v.  Fort,  17  Wall. 
553. 

Of  course,  this  rule  would  not  require  tlie  employer  to  be- 
come responsible  to  the  servant  for  any  injury  he  might  re- 
ceive, while  in  the  employment  of  the  master,  resulting  from 
those  dangers  which  are  the  subject  of  common  knowledge, 
or  which  can  be  readily  seen  by  common  observation.  Such 
risks,  and  the  danger  therefrom,  are  always  assumed  by  the 
servant  when  he  engages  in  the  service;  but  when  the  danger 
to  be  avoided  requires  a  knowledge  of  scientific  facts,  or  is  the 
result  of  well-known  chemical  combinations  among  well-edu- 
cated men,  then  I  think  the  rule  applies  with  much  force,  and 
cannot  be  ignored. 

I  do  not  think  the  court  can  presume  that  the  common 
laborer  in  a  foundry  or  machine-shop,  such  as  this  was,  is 
possessed  of  the  scientific  knowledge  necessary  to  enable  him 
to  comprehend  and  avoid  any  such  danger  as  overtook  Mr. 
Smith  on  that  icy  way,  resulting  in  his  death;  and  I  think, 
before  he  was  called  upon  to  perform  the  hazardous  under- 
taking by  Mr.  Iloban,  the  foreman  in  charge,  he  should  have 
been  informed  somewhat  of  its  dangerous  character.  This, 
however,  was  not  done;  and  there  is  no  pretense  that  the 
death  of  Mr.  Smith  was  not  caused  by  the  explosion  which 
followed  the  contact  of  the  molten  iron  with  the  water  and 
ice  covering  the  dangerous  passage  over  which  the  same  was 
required  to  be  carried. 

And  I  think  it  may  safely  be  said  that,  had  Smith  known 
of  the  dangerous  character  of  the  service  arising  from  the  acci- 
dental contact  of  the  water  and  ice  with  the  melted  iron,  he 
in  all  probability  would  have  refused  to  perform  the  service 
required.  I  know  it  is  said  he  passed  over  the  icy  track  but 
a  few  moments  before  the  accident  occurred,  and  did  so  safely, 

Ax.  Bt.  Kep.,  Vol.  I.  —  33 


546  Smith  v.  Peninsular  Cab  Works.  [Mich. 

and  must  have  observed  the  danger  of  falling.  Conceding 
this,  and  that  he  was  willing  to  take  the  risk  of  such  danger, 
he  certainly  (if  he  did  not  know  that  the  molten  iron  cast 
upon  the  water  and  ice  would  cause  an  explosion)  could  not 
have  consented  to  take  the  risk  of  a  fatal  explosion.  This 
was  the  danger  he  was  subjected  to  in  obeying  the  command 
of  his  employer,  and  of  which  he  had  no  notice  or  knowledge, 
as  is  claimed  by  the  plaintiff;  and  it  is  the  neglect  of  the 
company,  or  its  foreman,  to  notify  the  servant  of  such  latent 
danger  that  she  (plaintiff)  makes  the  basis  of  her  suit  in  this 
case. 

The  suggestion  of  the  foreman  to  the  men  carrying  the 
molten  iron,  that  they  worked  or  were  going  too  fast,  was  no 
notice  that  if  they  allowed  the  water  and  ice  to  come  in  con- 
tact with  the  molten  iron  there  would  be  danger  of  a  terrific, 
and  perhaps  fatal,  explosion.  The  testimony  showed  that 
Smith  was  a  good  workman  and  a  careful  hand.  I  do  not 
think,  because  these  men  whistled  and  sang,  "  or  were  laugh- 
ing and  talking  and  full  of  fun,"  while  in  the  performance  of 
this  work,  this  tended  to  show  any  negligence  or  carelessness 
on  their  part,  but  was  rather  indicative  of  the  good  nature 
and  happy  disposition  of  these  servants.  The  law  requires 
no  such  strained  construction  of  the  indications  of  the  better 
feelings  of  our  nature  to  excuse  actionable  negligence  when 
accompanied  with  liability. 

It  is  also  suggested  that  it  was  as  much  the  duty  of  Smith 
to  have  made  the  way  safe  over  which  the  iron  was  carried  as 
it  was  of  any  one.  I  do  not  so  understand  the  law  applicable 
to  the  facts  contained  in  the  record.  Smith  was  under  the 
direction  of  the  foreman  in  all  that  he  did;  and  the  record 
does  not  show  that  he  had  any  authority  to  clear  this  way  of 
ice,  or  cover  it  with  some  other  material.  It  was  the  duty  of 
the  foreman  to  know  of  its  condition  and  safety  before  send- 
ing these  parties  over  it.  Smith  had  never  carried  molten 
iron  over  it  before.  It  was  not  really  the  department  in 
which  he  worked.  It  nowhere  appears  that  the  manner  in 
which  the  iron  was  carried,  or  the  neglect  of  any  duty  de- 
volving upon  Smith,  was  the  occasion  of  his  slipping  upon 
the  ice. 

Was  there  any  negligence  shown,  or  was  there  any  testi- 
mony reasonably  tending  to  show,  that  the  defendant  was 
guilty  of  negligence  in  the  matter? 

It  is  true,  if  the  plaintiff's  intestate  had  knowledge  of  all 


April,  1886.]    Smith  v.  Peninsular  Car  Works.  647 

the  facts,  or  had  notice  of  all  the  facts,  resulting  in  the  fatal 
danger,  before  the  accident  occurred,  then  the  plaintiff  could 
not  recover;  but  as  I  have  before  said,  he  cannot  be  presumed 
to  have  known  them  under  the  testimony  in  this  case,  and 
certainly  the  record  does  not  show  that  the  defendant  ever 
gave  him  any  information  upon  the  subject. 

I  think  it  was  the  duty  of  the  defendant,  by  its  agent  or 
foreman,  to  have  informed  Smith  of  the  dangerous  character 
of  the  service,  and  it  was  incumbent  upon  the  defendant  to 
show  that  Smith  had  knowledge  or  notice  of  such  extraor- 
dinary danger,  —  a  danger  not  liable  to  exist  or  be  incurred  in 
carrying  on  the  work  which  he  was  engaged  to  perform  in  the 
usual  place  and  in  the  usual  manner;  and  if  the  agent  in 
charge  had  not  such  knowledge,  or  was  not  qualified  to  give 
such  information  to  the  servant,  the  defendant  was  guilty  of 
negligence  in  not  furnishing  a  foreman  with  the  proper  quali- 
fications for  the  position. 

In  the  absence  of  testimony  showing  the  proper  notice  given 
by  the  agent  in  charge,  or  knowledge  on  the  part  of  the  ser- 
vant, it  is  diflBcult  to  perceive  how  Smith  could  be  said  to  be 
guilty  of  contributory  negligence,  or  how  he  could  be  said  to 
have  assumed  all  the  risks  and  perils,  ordinary  and  extraor- 
dinary, incident  to  the  employment:  McGowan  v.  La  Plata 
Mining  Co.,  SMcCrary,  397;  Kibele  v.  Philadelphia,  105  Pa.  St. 
41;  Gilmore  v.  Northern  Pacific  K'y  Co.,  9  Saw.  558;  Spelman 
V.  Fisher  Iron  Co.,  56  Barb.  151;  Parkhurst  v.  Johnson,  50  Mich. 
70;  45  Am.  Rep.  28;  Smith  v.  Oxford  Iron  Co.,  42  N.  J.  L.  475; 
36  Am.  Rep.  535;  Wood  on  Master  and  Servant,  749;  Ford  v. 
Fitchburg  R.  Co.,  110  Mass.  240;  14  Am.  Rep.  598;  Fuller 
v.  Jewett,  80  N.  Y.  46;  36  Am.  Rep.  575;  Wright  v.  New  York 
Central  R.  R.  Co.,  25  N.  Y.  569;  Greene  v.  Minneapolis  and 
St.  L.  R'y  Co.,  31  Minn.  248;  47  Am.  Rep.  785;  Wabash  Ry 
Co.  V.  McDaniels,  107  U.  S.  454;  Hough  v.  T.  &  P.  R'y  Co., 
100  Id.  214;  Corcoran  v.  Holbrook,  59  N.  Y.  517;  Teipel  v.  HiU 
tendegen,  44  Mich.  461;  Billings  v.  Breinig,  45  Id.  71. 

The  facts  from  which  contributory  negligence  are  proper  to 
be  inferred  ought  to  have  been  submitted  to  the  jury,  and 
there  was  testimony  from  which  the  jury  might  have  found 
defendant  guilty  of  negligence,  and  the  court  should  have  left 
both  questions  to  the  jury. 

These  views  render  the  consideration  of  the  other  assign- 
ments of  error  unnecessary. 

The  judgment  must  be  reversed  and  a  new  trial  granted. 


548  Smith  v.  Peninsular  Car  Works.  [Mich. 

Campbell,  C.  J.,  dissented,  being  of  the  opinion  that  the  case  did  not  pre- 
sent any  ground  of  recovery.  The  only  point  of  any  legal  importance  was 
whether  the  defendant  was  responsible,  at  all  events,  for  not  seeing  that 
there  should  be  no  ice  on  the  path  over  which  the  decedent  passed  with  the 
melted  iron.  The  danger  of  explosion  when  melted  metal  comes  in  contact 
with  water  was  the  same  that  would  exist  anywhere,  inside  or  outside  of 
the  building.  It  was  one  of  those  dangers  incident  to  all  foundries  which 
all  persons  of  any  experience  in  such  employment  must  be  presumed  to  have 
sufficient  understanding  to  avoid.  But  in  this  case  the  danger  did  not  differ, 
except  perhaps  in  degree,  from  other  dangers  which  a  slip  or  fall,  when  car- 
rying melted  metal  over  any  slippery  place,  must  almost  inevitably  bring 
about.  The  fact  that  risks  may  differ  in  extent,  when  all  are  of  similar 
danger  to  personal  security,  cannot  change  the  rule  of  diligence  on  either 
side.  It  could  not  be  said  that  the  foreman  knew  any  better  than  the  de- 
ceased that  ice  was  liable  to  cause  slipping,  or  that  a  slip  on  it  with  such  a 
burden  would  probably  be  a  serious  matter.  The  risk  was  open  to  observa- 
tion. Neither  could  it  be  supposed  that  it  needed  any  special  knowledge  to 
discover  it  in  broad  daylight,  or  to  expect  its  possibility  in  such  weather. 
No  workman  was  expected  or  bound,  unless  he  pleased,  to  incur  any  serious 
danger  without  remonstrance,  or  any  use  of  means  to  avoid  it;  and  where 
any  one  deliberately  chooses  to  go  over  a  path  which  is  as  easily  seen  by  him 
as  it  could  be  by  any  one  else,  he  must  be  responsible  for  an  accident  aris- 
ing out  of  its  condition,  unless  there  was  such  a  positive  duty  in  his  em- 
ployer to  provide  an  absolutely  safe  path  as  to  relieve  him  from  any  obliga- 
tion to  look  where  he  was  going.  To  require  such  extreme  care  on  the  one 
side,  and  to  allow  such  blind  reliance  on  the  other,  would  introduce  into  the 
law  rules  which  go  beyond  reason.  The  rule  that  a  safe  place  of  employ- 
ment must  be  furnished  was  one  which  could  not  go  so  far  without  destroy- 
ing all  safety  to  employers  themselves.  It  was  a  sensible  and  proper  rule  in 
cases  where  the  place  and  its  surroundings  were  not  open  to  the  knowledge 
of  the  persons  employed,  but  it  could  have  no  application  where  every  one 
had  the  same  opportunity  of  judgment,  and  no  peculiar  knowledge  or  ex- 
perience was  involved.  No  rule  could  be  a  safe  one  which  would  render  it 
unsafe  for  persons  to  employ  others  to  aid  them.  The  cases  that  generally 
come  up  arise  where  the  employment  is  upon  a  considerable  scale,  and  it  is 
supposed  the  employer  can  afford  to  loose  better  than  the  person  employed; 
but  the  principle,  if  correct,  will  apply  as  forcibly  to  domestic  service  and 
small  industries  as  to  any  other. 

Master's  Duty  to  Warn  and  Instruct  Servant  Employed  in  Dan- 
gerous Work.  —  It  is  a  well-settled  rule  that  a  servant  assumes  the  risks  of 
the  employment  when  he  enters  into  it  with  a  knowledge  thereof:  Note  to 
Buzzell  V.  Laconia  Mfg.  Co,,  77  Am.  Dec.  222;  it  is  equally  well  settled  that 
a  master  must  use  ordinary  and  reasonable  care  in  protecting  his  servants 
from  injury:  Id.,  218;  note  to  CMcago  etc.  R.  R.  v.  Svxtt,  92  Id.  213;  and  it 
is  also  as  completely  established  that  a  master  is  not  liable  for  an  injury, 
suffered  by  the  servant  in  the  course  of  his  employment,  from  a  defect  in. 
machinery,  or  other  danger,  unless  the  master  knew,  or  ought  to  have  known, 
thereof,  and  the  servant  did  not  know  of  it,  or  did  not  have  equal  means  of 
knowledge:  Note  to  Buzzellv.  Laconia  Mfg.  Co.,  77  Id.  223,  and  cases  cited; 
note  to  Chicago  etc.  R.  R.  v.  Sioett,  92  Id.  214;  Louisville  etc.  R.  R.  v.  Allen, 
78  Ala.  494;  Colorado  Central  R.  R.  v.  Ogden,  3  Col.  499;  Central  R.  R.  v. 
Kenney,  58  Ga.  485;  Wonder  v.  Baltimore  etc.  R.  R.,  32  Md.  411,  417;  Elliott 
V.  St,  Louis  etc.  R.  R.,  67  Mo.  272;  Porter  v.  Hannibal  etc.  R.  R.,  71  Id> 


April,  1886.]     Smith  v.  Peninsular  Car  Works.  549 

66,  79;  Ryan  v.  Fowler,  24  N.  Y.  410;  82  Am.  Dec.  315;  Fauliner  v.  Ene  R% 
49  Barb.  324;  Loonam  v.  Jirockway,  28  How.  Pr.  472;  Nelson  v.  Dubois,  11 
Daly,  127;  Mad  River  etc.  R.  R.  v.  Barber,  5  Ohio  St.  541;  Noyea  v.  Smith, 
28  Vt.  59;  C5  Am.  Dec.  222;  Wedfjioood  v.  Chicago  etc.  R'y,  41  Wis.  478,  482. 

It  is  a  plain  deduction  from  these  principles  that  it  is  the  duty  of  a 
master  to  give  such  warning  to  the  servant  of  all  defects  or  hazards  in- 
cident to  the  occupation  of  which  the  master  knows,  or  ought  to  know, 
and  such  instruction  as  may  be  warranted  by  ignorance,  inexperience,  or 
want  of  capacity  of  the  servant,  and  the  dangerous  nature  of  the  em- 
ployment: Wood  on  Ma&ter  and  Servant,  sec.  349;  1  Shearman  and  Red- 
field  on  Negligence,  4th  ed.,  sec.  203;  2  Thompson  on  Negligence,  979; 
Wharton  on  Negligence,  sec.  209;  Deering  on  Negligence,  sec.  197;  Cooley 
on  Torts,  554;  note  to  Buzzell  v.  Laconia  M/rj.  Co.,  77  Am.  Dec.  223;  Foneav. 
Phillips,  39  Ark.  17;  43  Am.  Rep.  2G4;  St.  Louis  etc.  Ry  v.  Valerias,  6G  Ind. 
511;  Atlas  Emjine  Works  v.  Randall,  100  Id.  293;  50  Am.  Rep.  798;  Louisville 
etc.  R'yv.  Frawley,  110  Ind.  IS;  SJiannyv.  Androscoggin  Mills,  66  Me.  420, 
427;  Walsh  v.  Peet  Valve  Co.,  110  Mass.  23;  O'Connor  v.  Adams,  120  Id.  427; 
WJieeler  v.  Wason  Mfg.  Co.,  135  Id.  294,  298;  Ryan  v.  Tarbox,  135  Id.  207, 
208;  Leary  v.  Boston  etc.  R.  R.,  139  Id,  580,  584;  52  Am.  Rep.  733;  At- 
kins V.  Merrick  Thread  Co.,  142  Mass.  431;  Cliicago  etc.  R'yv.  Bayfield,  37 
Mich.  205,  212;  Swoboda  v.  Ward,  40  Id.  420;  Parkhurst  v.  Johnson,  50  Id. 
70;  45  Am.  Rep.  28;  Gibson  v.  Pacific  R.  R.,  46  Mo.  163;  2  Am.  Rep.  497; 
DeviU  V.  Pacific  R.  R.,  50  Mo.  302,  305;  Cummings  v.  Collins,  61  Id.  520; 
Porter  y.  Hannibal  etc.  R.  R.,  71  Mo.  68,  78;  Clowersv.  WaJjosh  etc.  R.  R., 
21  Mo.  App.  213;  Paulmier  v.  Erie  R.  R.,  34  N.  J.  L.  151;  Missouri  Pacific 
R'y  v.  WaMs,  64  Tex.  5G8;  Missouri  Pacific  R'y  v.  Callbreath,  66  Id.  526; 
StraJdendorfy.  Rosenthal,  30  Wis.  674;  McOovoan  v.  La  Plata  Min.  etc.  Co.,  3 
McCrary,  393  (a  case  bearing  a  close  resemblance  to  the  principal  case); 
Daviesv.  England,  10  Jur.,  N.  S.,  1235;  33  L.  J.  Q.  B.  321.  This  rule  is 
especially  applicable  to  the  case  where  the  servant  is  a  minor:  2  Thompson 
on  Negligence,  978;  Wood  on  Master  and  Servant,  sec.  350;  Grizzle  v.  Frost, 
3  Fost.  &  F.  622;  Fisk  v.  Central  Pacific  R.  R.,  72  Cal.  38;  ante,  p.  22;  Hill  v. 
Omt,  55  Ind.  45;  St.  Louis  etc.  R'y  v.  Valerius,  56  Id.  51 1 ;  Pittsburgh  etc.  R'y  v. 
Adams,  105  Id.  151,  165;  Coombs  v.  New  Bedford  Cordage  Co.,  102  Mass.  572;  3 
Am.  Rep.  606;  Sullivan  v.  India  Mfg.  Co.,  113  Mass.  396;  Bowling  v.  Allen,  74 
Mo.  13;  41  Am.  Rep.  298;  14  Cent.  L.  J.  92;  Hickey  v.  Taaffe,  105  N.  Y.  26; 
Jones  V.  Florence  Min.  Co.,  66  Wis.  268;  57  Am.  Rep.  269;  Railroad  Co.  v. 
Fort,  17  Wadl.  553;  yet  if  a  child  has  obtained  the  requisite  knowledge  from 
any  source,  the  master's  personal  neglect  to  give  instruction  will  not  render 
him  liable:  Sullivan  v.  India  Mfg.  Co.,  113  Mass.  396.  The  master's  duty  of 
giving  notice,  when  such  duty  exists,  is  an  absolute  one,  and  is  not  performed 
by  delegating  it  to  a  third  ijorson,  who,  though  competent  for  that  purpose, 
fails  to  give  the  proper  information:  Wheeler  v.  Wason  Mfg.  Co.,  135  Id.  294. 

It  will  be  observed  that  as  a  general  rule  the  master  is  not  required  to  ex- 
plain patent  dangers.  Yet  the  youth,  inexperience,  ignorance,  or  want  ot 
capacity  of  the  servant  may  require  the  master  to  warn  the  servant  as  to 
dangers  which  might  be  open  to  ordinary  observation.  Thus  in  Jones  v. 
Florence  Min.  Co.,  66  Wis.  268,  277,  57  Am.  Rep.  269,  272,  it  is  said:  "Wo 
think  it  is  now  clearly  settled  that  if  a  master  employs  a  servant  to  do  work 
in  a  dangerous  place,  or  where  the  mode  of  doing  the  work  is  dangerous  and 
apparent  to  a  jHsrson  of  capacity  and  knowledge  of  the  subject,  yet  if  the  ser- 
vant employed  to  do  work  of  such  a  dangerous  character  or  in  a  dangerous 
lilice,  from  youth,  inexperience,  ignorance,  or  want  of  general  capacity,  may 


650  Smith  v.  Peninsular  Car  Works.  [Mich. 

fail  to  appreciate  the  dangers,  it  is  a  breach  of  duty  on  the  part  of  the  master 
to  expose  a  servaint  of  such  character,  even  with  his  own  consent,  to  such 
dangers,  unless  he  first  gives  him  such  instructions  or  cautions  as  will  enable 
him  to  comprehend  them,  and  do  his  work  safely,  with  proper  care  on  his  part. 
This  rule  does  not  in  any  manner  conflict  with  the  other  well-established  rule 
that  the  employee  in  any  particular  business  assumes  all  the  risks  and  hazards 
which  are  incident  to  such  business,  when  the  employee  is  of  sufficient  in- 
telligence and  knowledge  to  comprehend  the  dangers  incident  to  his  em- 
ployment; and  in  the  case  of  an  adult  person,  in  the  absence  of  evidence 
showing  the  contrary,  the  presumption  is,  that  the  employee  has  sufficient  in- 
telligence to  comprehend  the  dangers  incident  to  his  employment  ":  See  also 
Coombs  V.  New  Bedford  Cordage  Co.,  102  Mass.  572;  3  Am.  Rep.  506;  Sullivan 
V.  India  Mfg.  Co.,  113  Mass.  396,  399;  Hill  v.  Oust,  55  Ind.  45;  St.  Louis  etc. 
Ji'y  V.  Valerius,  56  Id.  511;  Chicago  etc.  R'y  v.  Bayfield,  37  Mich.  205,  212; 
DowUng  v.  Allen,  74  Mo.  13;  41  Am.  Rep.  298;  14  Cent.  L.  J.  92;  Fisk  v. 
Central  Pacific  R.  R.  72  Cal.  38;  ante,  p.  22.  The  nature  of  the  employment 
or  the  experience  of  the  servant  may  be  such  that  the  master  will  have  a  right 
to  assume  that  the  servant  knew  the  danger,  without  special  warning  or  in- 
struction: Williams  V.  ChurcJdll,  137  Mass.  243;  50  Am.  Rep.  307;  MicJugan 
Central  R.  R.  v.  SmitJison,  45  Mich.  212;  HatMvoay  v.  Midugan  Central  R.  R., 
51  Id.  253;  47  Am.  Rep.  569;  On  the  other  hand,  the  person  employed  may 
be  so  young,  inexperienced,  and  immature  in  judgment  that  no  kind  of 
warning  and  instruction  would  relieve  the  master  from  responsibility  for  in- 
juries resulting  from  putting  him  at  a  hazardous  and  dangerous  work:  Pitts- 
hurgh  etc.  R'y  v.  Adams,  105  Ind.  151,  166;  Hickey  v.  Taaffe,  105  N.  Y.  26,  36. 

Not  only  is  it  a  master's  duty  to  warn  the  servant  against  latent  defects 
and  hazards  incident  to  the  service,  of  which  the  master  knows,  or  ought  to 
know,  but  a  like  duty  rests  upon  the  master  where  there  is  no  danger  in  the 
work  itself,  but  the  peril  grows  out  of  extraneous  causes:  Wharton  on  Negli- 
gence, sec.  209;  Baxter  v.  Roberts,  44  Cal.  187;  13  Am.  Rep.  160;  Perry  v. 
Marsh,  25  Ala.  659.  And  where  a  servant  is  compelled  by  the  master  to  do 
other  work,  extra  hazardous,  by  which  the  servant  loses  his  life,  the  master, 
knowing  he  was  unskilled  and  unacquainted  with  the  manner  of  doing  the 
work,  is  liable:  Lahr  v.  Chicago  etc.  R.  R.,  52  111.  401;  4  Am.  Rep.  616. 

The  duty  of  the  master  to  give  warning  to  the  servant  does  not  simply  rest 
upon  him  at  the  inception  of  the  employment.  It  is  his  duty  to  inform  the 
servant  of  any  increased  danger  from  a  change  of  machinery,  or  the  intro- 
duction of  new  machinery,  unless  the  servant  has  notice,  or  ought  to  take 
notice,  thereof:  Hawkins  v.  Johnson,  105  Ind.  29,  35;  O'Neil  v.  St.  Louis  etc. 
R'y,  9  Fed.  Rep.  337.  So  if  a  master  knows,  or  under  the  circumstances 
ought  to  have  known,  that  a  machine  in  use  was  out  of  repair  and  dangerous, 
it  is  his  duty  to  see  that  it  is  put  in  proper  repair,  or  to  warn  those  using  it  of 
the  danger,  if  they  were  ignorant  of  it:  Rice  v.  King  Pliilip  Mills,  144  Mass. 
229,  237;  59  Am.  Rep.  80,  82;  and  see  Shanny  v.  Androscoggin  Mills,  66  Me. 
420,  427.  So  it  is  the  duty  of  an  empLyer  who  furnishes  a  new  explosive 
for  his  servants'  use  to  ascertain  and  make  known  its  properties  and  the 
mode  of  using  it:  Smith  v.  Oaford  Iron  Co.,  42  N.  J.  L.  467;  36  Am.  Rep.  535; 
Spelman  v.  Fisher  Iron  Co.,  56  Barb.  151. 


April,  1886.]  Wait  v.  Baldwin.  661 

Wait  v.  Baldwin. 

[60  Michigan,  622.J 

Evidence  of  Agreement  between  Grastok  and  Husband  op  Grantee, 
by  which  the  grantor  released  his  claim  to  timber  excepted  by  the  deed, 
is  inadmissible  in  an  action  of  replevin  by  the  grantor  for  the  timber, 
and  should  not  be  submitted  to  the  jury,  where  no  agency  of  the  hus- 
band was  shown,  and  where  the  alleged  settlement  was  made  by  the 
husband  long  after  his  wife  had  conveyed  the  land  to  strangers,  and 
several  years  after  he  had  separated  from  his  wife. 

Title  to  Timber  Excepted  in  Deed  Remains  in  Grantor,  who  has  im- 
plied power  to  enter,  fell,  and  take  it  away;  and  is  of  the  same  binding 
force  and  effect  as  if  the  whole  estate  had  been  granted,  and  then  the 
grantee  had  reconveyed  the  timber  to  the  grantor,  in  which  case  the 
grantor's  right  to  enter  upon  the  land,  and  cut  and  remove  the  timber 
at  pleasure,  would  have  passed  as  an  incident  of  the  grant,  and  could 
not  have  been  revoked,  unless  coupled  with  a  limitation  as  to  the  time 
of  enjoyment. 

Grantor's  Right  to  Enter  and  Remove  Timber  under  Exception  Con- 
tained IN  Deed,  without  limitation  as  to  the  time  of  removal,  does  not 
rest  upon  the  notion  of  a  license  from  the  grantee,  but  as  being  con- 
nected with  the  exception  as  an  incident  to  its  enjoyment,  and  is  an 
interest  in  the  land  to  that  extent;  and  subsequent  purchasers  taking 
the  title  with  full  notice  of  the  right  are  entitled  to  no  protection  against 
it  as  innocent  purchasers. 

Replevin.    The  facts  are  stated  in  the  opinion. 

Black  and  Corcoran,  for  the  appellant. 

H.  P.  Atwood  and  T.  W.  Atioood,  for  the  respondents. 

By  Court,  Champlin,  J.  The  plaintiff,  on  the  13th  of  March, 
1883,  brought  replevin  to  recover  possession  of  1,276  felled 
cedar  trees,  30  pieces  of  cedar,  and  6  pine  logs,  cut  from  the 
north  half  of  the  northwest  quarter  of  section  36,  in  township 
12  north,  range  10  east,  Michigan. 

He  introduced  in  evidence  on  the  trial  a  deed  bearing  date 
"the  second  day  of  July,  in  the  year  of  our  Lord,"  but  not 
naming  any  year;  the  evidence,  however,  tended  to  show  that 
it  was  delivered  in  the  year  1870.  This  deed  conveyed  the 
land  above  described  to  Loretta  M.  Rumble,  and  immediately 
after  the  word  "  Michigan  "  contained  the  following  words, 
**  excepting  timber  therein."  The  evidence  shows  that  there 
was  at  that  time  standing  and  growing  on  the  land  conveyed 
timber  of  the  following  varieties:  pine,  cedar,  hemlock,  black 
ash,  and  chestnut.  Some  four  or  five  years  after  the  date  of 
the  conveyance,  plaintiff  sold  all  the  pine  timber  on  the  land 
to  Stevens,  Fowler,  and  Holland,  who  cut  and  removed  the 
most  thereof. 


552  Wait  v.  Baldwin.  [Mich. 

The  defendant  Baldwin  acquired  title  to  the  land  above 
described  by  a  warranty  deed  from  Mrs.  Rumble  to  Mr.  and 
Mrs.  Poole,  executed  in  May,  1871,  and  a  warranty  deed  from 
them  to  him  before  he  cut  the  timber  in  question. 

There  was  testimony  introduced  upon  the  trial  having  a 
tendency  to  prove  that  the  plaintiff,  after  the  execution  of  the 
deed  to  Mrs.  Rumble,  who  had  then  sold  the  land  by  warranty 
deed,  in  an  interview  with  Mr.  Rumble,  who  made  the  bargain 
for  the  purchase  on  behalf  of  his  wife,  agreed  that  he  was  to 
have  five  years  in  which  to  take  the  timber  off;  and  that  after- 
wards, some  dispute  having  arisen  with  reference  to  plaintiff's 
right  to  the  timber,  there  was  an  agreement  made  by  which 
plaintiff's  claim  to  the  timber  was  fully  settled  and  ended. 
Both  of  these  transactions,  if  they  occurred  at  all,  transpired 
between  Mr.  Rumble  and  the  plaintiff  long  after  Mrs.  Rumble 
had  sold  to  the  Pooles,  and  also  several  years  after  Rumble 
had  separated  from  his  wife,  and  they  were  living  apart. 
Rumble  had  no  interest  whatever  in  the  land  or  the  timber, 
and  no  privity  or  connection  whatever  with  the  title  or  cove- 
nants of  the  deed  to  the  Pooles.  He  was  not  authorized  by 
his  wife  or  any  other  person  to  make  any  arrangements  with 
plaintiff  with  reference  to  the  timber,  or  to  settle  his  claim 
against  the  timber.  What  he  did,  by  his  own  testimony,  was 
as  a  mere  stranger  and  volunteer,  and  his  acts  have  never 
been  ratified  or  sanctioned  by  Mrs.  Rumble  or  any  other  person 
interested  in  such  action. 

His  testimony  concerning  these  transactions  was  admitted 
against  the  objection  of  plaintiff's  counsel,  and  was  submitted 
by  the  court  to  the  jury,  with  instructions  that  from  it  they 
could  find  an  agreement  by  which  the  plaintiff  agreed  that  the 
timber  should  be  removed  in  five  years;  and  also  that  they 
could  find  that  Mr.  Rumble,  for  Mrs.  Rumble,  had  a  final  set- 
tlement with  plaintiff  of  his  claim  to  the  timber. 

I  think  the  court  erred  in  receiving  the  testimony  of  Mr. 
Rumble  upon  these  two  points,  and  in  submitting  it  to  the 
jury.  There  was  no  agency  proved,  or  attempted  to  be  proved. 
There  was  no  privity  of  contract  established  between  Mrs. 
Rumble  aijd  plaintiff,  and  he  was  not  bound  by  any  such 
agreement  or  settlement  as  Rumble  asserted  was  made,  and 
which  plaintiff  denies  was  made. 

This  is  not  a  case  of  a  sale  of  land  excepting  therefrom  the 
timber,  which  is  to  be  removed  within  a  certain  specified  time, 
or  of  the  sale  of  timber  to  be  removed  within  a  fixed  period; 


April,  1886.]  Wait  v.  Baldwin.  653 

in  which  cases  it  has  been  held  that  the  limitation  of  time 
enters  into  the  contract  of  sale,  and  the  reservation  or  sale 
applies  to  such  timber  only  as  is  removed  within  the  time 
limited;  and  that  no  title  is  retained  in  the  one  case,  or  passes 
in  the  other,  to  any  timber  which  remains  upon  the  land  after 
the  time  agreed  upon  for  its  removal  has  expired. 

Here,  in  the  deed  granting  the  land,  the  timber  thereon  is 
excepted  from  the  grant.  The  title  to  the  timber  remains  in 
the  plaintiflf,  who,  by  the  transaction,  has  an  implied  power 
to  enter,  fell,  and  take  away  the  timber:  Boults  v.  Mitchell,  15 
Pa.  St.  871,  379;  Wood  v.  Leadbitter,  13  Mees.  &  W.  844; 
Thomas  v.  Sorrel,  Vaughan,  330,  351;  Hewitt  v.  Isham,  7  Ex. 
75;  Pierrepont  v.  Barnard,  6  N.  Y.  279. 

Plaintiflf's  title  to  the  timber  arising  from  the  exception  in 
the  deed  is  of  the  same  binding  force  and  effect  as  if  the  whole 
estate  had  been  granted  by  the  deed,  and  then  Mrs.  Rumble 
bad  executed  a  deed  to  plaintiff  of  all  the  timber  upon  the 
land;  in  which  case  the  plaintiff's  right  to  enter  upon  the  land, 
and  cut  and  remove  the  timber  at  pleasure,  would  have  passed 
as  an  incident  of  the  grant,  and  could  not  have  been  revoked 
by  Mrs.  Rumble  so  as  to  defeat  her  grant  to  which  the  right 
was  incident.  It  is  essential  to  the  enjoyment  of  the  property, 
and  as  such  enters  into  the  property  rights  of  the  plaintiff  in 
the  timber  by  the  assent  of  both  parties.  Such  a  right,  where 
there  are  no  words  in  the  contract  showing  a  limitation  of  the 
time  of  enjoyment,  or  within  which  it  shall  be  exercised,  is  not 
revocable,  nor  can  it  be  terminated  at  the  will  of  the  owner  or 
grantee  of  the  land,  nor  by  notice  to  remove  the  timber  in  a 
reasonable  time.  The  right  to  enter  and  remove  the  timber 
under  the  exception  contained  in  this  deed  does  not  rest  upon 
the  notion  of  a  license  from  the  grantee,  but  as  being  con- 
nected with  the  exception  as  an  incident  to  its  enjoyment,  and 
is  an  interest  in  the  land  itself  to  that  extent. 

This  being  so,  the  subsequent  purchasers  from  Mrs.  Rumble 
took  the  title  with  full  notice  of  what  appeared  in  the  deeds 
forming  the  chain  of  title  through  which  they  claim,  and  are 
entitled  to  no  protection  as  innocent  purchasers.  Plaintiff 
owned  the  timber  and  could  maintain  replevin  for  the  trees 
when  severed  from  the  land  without  his  permission  or  author- 
ity. No  doubt  the  plaintiff  could  give  a  license  by  parol  to 
defendants  to  sever  the  trees,  and  if  he  did  so,  and  it  was  exe- 
cuted before  it  was  revoked,  it  would  be  binding  upon  him: 


554  Biggs  v.  Sterling.  [Mich. 

Pierrepont  v.  Barnard,  6  N.  Y.  279.     But  the  case  was  not  de- 
fended or  submitted  to  the  jury  upon  this  theory. 

The  judgment  must  be  reversed,  and  a  new  trial  granted. 

Campbell,  C.  J.,  and  Sherwood,  J.,  concurred  in  the  result. 

ExcEFTioN  IN  Deed  or  Tuoeb,  Effect  of:  See  Mich  v.  Zeilsdorff,  99  Am. 
Deo.  81,  and  note;  Alcutt  ▼.  LaJcin,  66  Id.  739. 


RiGGS  V.  Steeling. 

[60  Michigan,  643.] 

Cebditor's  Right  to  have  his  Debt  Satisfied  bt  Sale  of  Debtor's  Laito 
NEVER  Existed  in  this  country  or  in  England,  except  as  given  by  statute. 

Homestead  Exemption  is  not  in  Derogation  of  Common  Law,  but  i» 
rather  the  limitation  and  exclusion  of  that  exemption.  The  rule  requir- 
ing strict  construction  has  therefore  no  application  to  homestead  stat- 
utes, as  against  the  debtor,  or  to  the  constitutional  provision  securing  to 
him  a  homestead. 

Homestead  Exemption  Statutes  and  Constitutional  Provisions  are  Con- 
strued AVITH  Favor,  liberally,  and  in  accordance  with  their  equity  and 
spirit. 

Homestead  Exemption,  as  Established  by  Constitution  and  Laws  of 
Michigan,  is  not  Alone  for  Husband,  and  his  protection,  but  for  the 
benefit  of  the  wife  and  children  as  well. 

Homestead  Exemption  is  not  Only  Privilege  Conferred,  but  under  the 
constitution  of  Michigan  it  is  an  absolute  right;  and  was  intended  to 
secure  against  creditors  a  home,  and  to  a  certain  extent  the  means  of 
support,  to  every  family  in  the  state. 

Occupancy  is  Itself  Evidence  of  Election  as  Homestead,  in  Michigan,  by 
the  owner  of  the  parcel  occupied,  and  a  notice  to  all  of  its  homestead 
character,  and  of  his  selection,  and  the  extent  thereof,  to  enable  him  to 
enjoy  the  fullest  protection  of  the  law,  where  the  land  claimed  as  a 
homestead  is  within  the  quantity  limited  by  the  constitution,  and  is 
occupied  by  the  owner. 

Homestead,  within  Constitutional  Limit  as  to  Quantity,  when  Once 
Established,  in  Michigan,  by  election,  selection,  and  occupancy,  is  se- 
cure from  the  claims  of  creditors,  unless  it  exceeds  in  value  fifteen  hun- 
dred dollars;  in  which  event,  if  it  is  capable  of  division,  the  creditor  may 
apply  to  a  court  of  equity  to  have  it  divided,  if  the  debtor  will  not  con- 
sent thereto;  but  if  in  any  case  the  homestead  is  incapable  of  division,  it 
may  be  sold  in  the  manner  provided  by  statute,  and  the  sum  of  fifteen 
hundred  dollars  shall  be  reserved  and  paid  to  the  debtor  with  any  excess 
after  satisfying  the  execution. 

Excess  of  Value  will  not  Make  Any  Other  Action  on  Part  of  Debtor 
Necessary,  in  Michigan,  until  after  the  appraisal  provided  for  by  stat- 
ute has  been  made,  where  the  debtor  has  selected  his  homestead,  which 
is  within  the  constitutional  limit  as  to  quantity;  and  in  the  absence  of 
such  appraisal,  or  a  division  had  under  the  order  or  decree  of  a  court  of 
equity,  no  valid  sale  of  the  homestead  so  selected,  or  any  part  thereof, 
can  be  made  by  the  sherifEl 


April,  1886.]  Riggs  v.  Sterling.  555 

HoiCEST£iiD,  Oncs  ESTABLISHED,  CAIT  KEVER  BK  WAIVED,  in  Michigan,  ex- 
cept by  abandonment,  or  alienated,  except  by  deed  of  some  kind;  but 
prior  to  an  election  and  selection  by  the  owner,  it  may  be  waived  by 
failure  to  make  such  election  and  selection  before  sale  by  the  sherifil 

Watveb  or  Homestead  Right  by  Husband  cannot  Affect  Wife's  Inter- 
est THEREIN;  nor  can  the  abandonment  or  waiver  thereof  by  one  enti- 
tled to  its  enjoyment  affect  the  interest  of  any  other  person  equally 
entitled  thereto. 

Wife  does  not  Affect  her  Homestead  Right  by  Taking  Deed  of  Home- 
stead  from  her  husband  without  consideration,  and  such  a  conveyance 
cannot  be  considered  in  fraud  of  creditors. 

Fjuce  Obtained  for  Homestead  on  Execution  Sale  is  not  Conclusive  as 
to  its  value  in  ejectment  for  the  possession  of  the  property  under  the 
sale. 

C)0UBT  DOES  NOT  AbUSB  ITS  DISCRETION  IN  LlMITINO  NUMBER  OF  WITNESSES 

as  to  the  value  of  the  homestead  to  six  on  each  side,  where  the  only  ques- 
tion in  an  action  of  ejectment  for  the  possession  of  the  property  under  an 
execution  sale  was  as  to  the  value. 
Statements  by  Counsel  in  Opening  to  Jury,  showing  the  bearing  of  facts 
admissible  imder  the  issue  and  expected  to  be  proved,  and  how  the  issues 
are  naturally  affected  by  such  facts,  and  illustrating  the  relation  of  the 
facts,  and  showing  what  must  be  the  final  outcome,  however  strong  and 
forcibly  presented,  and  however  much  calculated  to  appeal  to  the  feel- 
ings, reason,  or  judgment,  are  proper;  although  statements  in  the  open- 
ing to  the  jury,  wholly  inadmissible  under  the  issue,  or  statements  in  the 
closing,  admissible  under  the  issue  but  not  proved,  are  improper. 

Ejectment.    The  facts  are  stated  in  the  opinion. 

S.  E.  Engle,  for  the  appellant. 

Sawyer  and  Knowlton^  for  the  respondent. 

By  Court,  Sherwood,  J.  The  action  in  this  case  is  eject- 
ment, to  recover  the  possession  of  less  than  forty  acres  of  land 
situate  in  the  county  of  Wayne,  and  not  included  in  any  town 
plat,  city,  or  village.  It  was  purchased  by  William  Sterling, 
the  husband  of  the  defendant,  in  1874,  and  was  used  and  oc- 
cupied by  them,  as  their  homestead,  until  the  sixth  day  of 
March,  1883,  when  the  husband  died,  and  the  defendant  has 
made  the  same  her  home,  continuing  the  occupancy  thereof 
by  herself  and  tenants,  up  to  the  time  of  commencing  this 
Buit. 

The  husband,  desiring  that  his  wife  should  have  the  prop- 
erty in  case  of  his  death,  and  he  being  in  poor  health,  on  the 
twenty-seventh  day  of  January,  1880,  conveyed  the  property 
by  warranty  deed  to  the  defendant,  and  the  deed  was  duly  re- 
corded on  the  seventh  day  of  October,  1882. 

In  January,  1880,  and  after  the  making  of  the  deed  to  the 


656  RiGQs  V.  Steeling.  [Mich. 

defendant,  the  plaintiff  recovered  a  judgment  against  the 
husband,  William  Sterling,  upon  a  note  several  years  past 
due,  for  about  the  sum  of  $213.  Execution  was  taken  out 
upon  this  judgment,  and  the  sheriff  levied  the  same  upon  the 
premises,  and  subsequently  advertised  and  sold  the  property 
to  satisfy  the  execution. 

The  plaintiff  became  the  purchaser  upon  the  sale,  at  the 
sum  of  $1,720,  and  paid  the  money  to  the  sheriff,  who  satis- 
fied the  execution,  and  holds  the  remainder  of  the  money, 
as  he  claims,  for  the  defendant. 

Neither  the  defendant  in  the  execution,  nor  the  defendant 
in  this  suit,  had,  at  the  time  of  the  levy,  any  other  real 
estate,  or  any  other  homestead,  and  they  were  using  and 
occupying  the  premises  as  such  homestead,  and  the  fact  of 
such  occupancy  by  the  defendant  and  her  husband  was 
known  to  both  the  plaintiff  and  the  sheriff. 

It  further  appears  that  neither  the  plaintiff  nor  the  sheriff 
ever  caused  any  appraisal  of  the  property  to  be  made.  Mrs. 
Sterling,  when  informed  of  the  levy,  desired  an  appraisal  to 
be  made  before  the  sale.  It  is  under  this  sale  plaintiff  claims 
title. 

After  the  time  had  expired  for  the  sale  to  become  absolute, 
the  plaintiff  instituted  proceedings,  under  subdivision  3  of 
section  6706  of  the  Compiled  Laws  of  1871,  to  recover  posses- 
sion of  the  premises  before  a  circuit  court  commissioner,  and 
the  case  was  appealed  to  the  circuit  court,  where  judgment 
was  had  for  the  defendant.  The  case  was  removed  to  this 
court,  and  the  proceedings  in  the  case  were  set  aside  on  the 
ground  that,  in  summary  proceedings,  the  question  of  title 
to  real  estate  cannot  be  litigated:  Riggs  v.  Sterling,  51  Mich. 
157. 

This  suit  is  now  brought  for  the  same  purpose,  the  plaintiff 
relying  solely  upon  his  title  derived  under  the  said  execution 
Bale. 

The  plea  in  the  case  is  the  general  issue,  with  notice  that 
the  premises  were,  at  the  time  of  the  levy  and  sale,  the  de- 
fendant's homestead,  and  did  not  exceed  fifteen  hundred  dol- 
lars in  value.  A  trial  of  the  case  was  had  before  Judge 
Chambers,  by  jury,  and  the  defendant  secured  a  judgment  in 
ber  favor.     The  case  is  now  before  us  for  review  on  error. 

The  facts  that  the  property  in  question  was  the  home  of  the 
defendant,  and  that  at  the  time  of  the  levy  and  sale  the  de- 
fendant had  one  child,  a  minor,  living  with  her,  are  not  se- 


April,  1886.]  Kiggs  v.  Sterling.  557 

riously  questioned.  Nor  is  it  questioned  but  that  the  premises 
were  within  the  quantity  allowed  to  the  defendant  by  the 
constitution  for  her  homestead. 

The  levy  made  was  for  the  debt  of  the  husband.  The 
defendant  was  neither  legally  nor  equitably  liable  therefor; 
neither  could  the  husband's  interest  in  the  premises  be  made 
liable  for  the  debt  if  the.  value  did  not  exceed  the  constitu- 
tional limits  of  a  homestead  while  it  was  occupied  by  his 
family  as  such. 

The  learned  counsel  for  the  plaintiff  seeks  to  sustain  the 
levy  and  sale,  which  is  made  the  basis  of  the  plaintiff's  title, 
and  upon  which  he  relies  to  maintain  this  suit,  upon  the  fol- 
lowing grounds,  viz.:  1.  That  the  homestead  right  is  a  per- 
sonal privilege;  that  it  may  be  taken  or  not  at  the  option  of 
the  person  or  persons  entitled  to  it;  that  the  election  to  claim 
it,  and  the  selection  thereof,  must  be  made  by  the  owners  or 
occupants  of  the  property  when  it  is  sought  to  be  subjected  to 
the  payment  of  their  debts,  and  without  such  claim  and  se- 
lection, properly  notified  to  the  sheriff  when  he  attempts  to 
enforce  collection  of  such  indebtedness  by  levy  and  sale,  the 
debtor  loses  the  benefit  of  his  privilege  to  occupy  the  property, 
or  any  part  thereof,  when  its  value  exceeds  fifteen  hundred 
dollars,  and  that  the  defendant  or  husband,  having  failed  to 
make  such  claim  or  selection  in  this  case,  cannot  now  bo 
heard  to  make  the  same  against  the  plaintiff,  but  must  be 
content  to  receive  the  value  of  the  exemption  in  money, 
though  such  value  be  the  amount  the  plaintiff  saw  fit  to  pay 
for  it  on  the  sale  made  by  the  sheriff;  2.  That  by  the  neglect 
of  the  defendant  or  her  husband  to  make  the  claim  and  selec- 
tion, their  homestead  right  in  the  premises  was  waived,  and  it 
is  immaterial  whether  the-  premises  contained  the  exempted 
quantity  fixed  by  the  constitution,  or  not;  3.  That  the  wife, 
relying  upon  the  deed  of  the  property  received  from  her  hus- 
band as  a  protection  against  the  plaintiff's  execution,  waived 
and  forfeited  her  homestead  right  in  the  premises;  4.  That 
the  value  of  the  claimed  homestead  was  conclusively  estab- 
lished by  the  amount  it  brought  at  the  execution  sale,  and 
that  subject  cannot  be  litigated  in  this  suit;  that  the  amount 
bid  at  the  sale  is  conclusive;  5.  That  the  execution  sale  can- 
not be  attacked  in  this  suit,  nor  the  plaintiff's  title  derived 
thereunder. 

The  individual  or  family  home  is  one  of  the  evidences  of 
modern  civilization.     It  is  recognized  among  the  earliest  in- 


658  RiGGs  V.  Sterling.  [Mich. 

stitutions  of  the  common  law.  A  man's  dwelling-place,  with 
his  interest  ia  the  land  lying  about  and  contiguous  to  it,  was 
always  inalienable  and  indefeasible,  except  when  required  by 
the  sovereign,  or  for  the  defense  of  the  state;  neither  could  the 
creditor,  at  the  common  law,  sell  any  of  his  debtor's  land  to 
satisfy  his  debt;  and  such  continued  to  be  the  law  for  centu- 
ries, and  for  a  long  time  after  the  restrictions  upon  alienation 
had  been  substantially  removed:  3  Bla.  Com.  418. 

The  first  encroachments  upon  the  exclusive  right  of  the 
debtor  to  the  use  of  his  land  were  as  late  as  the  statute  West- 
minster 2  (13  Edw.  I.,  c.  18),  and  not  until  the  1  &  2  Vict., 
c.  110,  was  the  creditor  permitted  to  make  sale  of  his  debtor's 
lands  to  satisfy  his  debt.  The  writs  of  fieri  facias  and  levari 
facias  only  allowed  the  taking  of  the  goods  and  profits  of  the 
debtor's  land.  The  sheriff  was  not  allowed  to  disturb  the 
debtor's  occupancy  or  possession  of  his  lands,  even  under 
the  writ  elegit.  The  sheriff  could  not  sell  the  land.  He  could 
only  take  possession  of  half  the  debtor's  land,  and  could  hold 
it  no  longer  than  the  profits  would  amount  to  enough  to  sat- 
isfy the  debt:  2  Inst.  395;  3  Bla.  Com.  160;  1  Roll.  Abr.  885. 

It  is  true  that  on  an  extent  under  statutes  merchant  or  stat- 
utes staple  the  debtor  could  be  deprived  of  the  use  of  all  hia 
land  for  his  debt,  but  this  could  only  be  done  when  he  had  con- 
sented to  the  judgment  (Fitz.  Nat.  Br.  131;  3  Bla.  Com.  419), 
or  lien  under  which  the  possession  was  taken.  It  is  only  in 
pursuance  of  statute  law  that  the  right  of  the  creditor  to  have 
his  debt  satisfied  by  a  sale  of  his  debtor's  land  ever  existed 
in  this  country  or  in  England. 

The  homestead  exemption  in  our  state,  and  in  this  country 
generally,  is  therefore  not  in  derogation  of  the  common  law, 
but  it  is  rather  the  limitation  and  exclusion  of  that  exemp- 
tion which  is  not  in  accordance  with  the  common  law.  It 
therefore  follows  that  the  rule  requiring  strict  construction 
has  no  application  to  these  statutes,  as  against  the  debtor,  or 
to  the  constitutional  provision  securing  the  homestead  to  him, 
and  it  has  no  proper  place  in  American  jurisprudence  upon 
the  subject;  and  very  few  cases  hold  otherwise. 

In  a  monarchical  government,  where  it  is  not  only  policy, 
but  absolutely  necessary,  to  increase  tenancies  and  dependen- 
cies, in  order  to  maintain  supremacy  in  the  sovereign  and  give 
stability  to  the  empire,  I  can  readily  see  why  the  homestead 
exemption  should  not  be  permitted  to  exist;  but  in  a  govern- 
ment like  ours,  where  a  tenantry  is  unfavorable  to  freedom 


April,  1886.]  Riggs  v.  Sterling.  559 

and  the  independence  of  the  people,  where  the  ownership  of 
the  freehold  is  essential  to  the  highest  development  of  the 
citizen,  secures  the  purest  patriotism,  and  gives  the  best  as- 
surance of  free  government,  its  necessity  and  importance 
cannot  be  well  overestimated. 

It  has  been  well  said  by  distinguished  jurists  in  our  sister 
states  "that  the  homestead  exemption  was  founded  upon 
principles  of  the  soundest  policy, — those  looking  to  the  gen- 
eral welfare,  as  well  as  to  that  of  the  individual  citizen;  and 
the  obvious  intent  of  the  act  is  to  secure  to  every  householder 
or  head  of  a  family  a  home,  —  a  place  of  residence,  —  which, 
he  may  improve  and  make  comfortable,  and  where  the  family 
may  be  sheltered  and  live  beyond  the  reach  of  those  financial 
misfortunes  which  even  the  most  prudent  and  sagacious  can- 
not avoid  ":  Franklin  v.  Coffee,  18  Tex.  415;  Wassell  v.  Tun- 
nah,  25  Ark.  103. 

Indeed,  the  time  has  come  when  the  right  to  homestead  ex- 
emption in  a  reasonable  amount  ought  to  be  regarded  as  ap- 
pertaining to  every  citizen  in  every  country  existing  under  a 
republican  form  of  government;  and  what  seems  most  singu- 
lar to  the  student  who  examines  this  subject  at  this  late  da}' 
is,  that  in  this  country  the  imperious  demands  of  business, 
and  the  avarice  and  greed  of  wealth,  should  for  so  long  a 
period  have  been  allowed  to  so  far  control  the  legislation  of 
the  country  as  to  completely  obliterate  the  last  vestige  of  tho 
wise  and  humane  provisions  of  the  common  law,  and  place 
not  only  the  home  but  the  homestead  of  every  husband  and 
family  at  the  tender  mercy  of  selfish,  uncompromising,  and 
it  may  be  unpatriotic  creditors. 

It  is  not  strange  that  courts  whose  duty  it  is  to  listen  to  the* 
grievances  of  both  debtor  and  creditor  alike,  and  do  justice 
to  each,  should  not  have  failed  to  improve  the  first  opportunity 
to  look  upon  and  construe  with  favor,  liberally,  in  accordance 
with  the  equity  and  spirit  of  the  law,  the  statutes  and  consti- 
tutional provisions  by  which  the  homes  and  homestead  ex- 
emption are  again  restored  to  the  citizen,  after  so  many  years 
of  deprivation  and  destitution  have  been  endured  by  the  un- 
fortunate in  every  community.  Such  has  always  been  the 
construction  given  to  these  provisions  of  our  constitution  and 
laws  upon  the  subject,  and  I  trust  a  less  liberal  and  humane 
view  will  never  be  taken  by  this  court:  People  v.  Plumsted,  2 
Mich.  465;  Beecher  v.  Baldy,  7  Id.  488;  Barber  v.  Rorabeck,  36 
Id.  399;  Bunker  v.  Paquette,  37  Id.  79;  Lozo  v.  Sutherland,  38 


560  RiGGs  V.  Sterling.  [Mich. 

Id.  168;  Richardson  v.  Buswell,  10  Met.  507;  43  Am.  Dec. 
450;  Montague  v.  Richardson,  24  Conn.  338;  63  Am.  Dec.  173; 
Springer  v.  Lewis,  22  Pa.  St.  191;  Robinson  v.  Wiley,  15  N.  Y. 
489;  Frost  v.  Shaw,  3  Ohio  St.  270;  Favers  v.  Glass,  22  Ala. 
621;  58  Am.  Dec.  272;  Wade  v.  Jones,  20  Mo.  75;  61  Am.  Dec. 
584;  Ferguson  v.  Miners^  Bank,  3  Sneed,  630;  Wilson  v.  Old- 
ham, 12  B.  Mon.  57. 

The  homestead  exemption,  as  established  by  the  constitu- 
tion and  laws  of  this  state,  is  not  alone  for  the  husband,  and 
his  protection,  but  for  the  benefit  of  the  wife  and  children 
as  well:  Const.,  art.  16,  sees.  2-4;  How.  Stat.,  c.  267;  People 
V.  Plumsted,  2  Mich.  471;  Beecher  v.  Baldy,  7  Id.  488;  Dye  v. 
Mann,  10  Id.  297;  King  v.  Moore,  10  Id.  538;  Snyder  v.  Peoplcy 
26  Id.  110;  12  Am.  Rep.  302;  Comstock  v.  Comstock,  27  Mich. 
97;  Showers  v.  Robinson,  43  Id.  502;  Sherrid  v.  Southwick,  43 
Id.  515;  Penniman  v.  Perce,  9  Id.  509;  Dyson  v.  Sheley,  11 
Id.  527. 

The  homestead  exemption  as  it  now  exists  is  not  only  a 
privilege  conferred  {Chamberlain  v.  Lyell,  3  ^lich.  458),  but 
under  the  constitution  it  is  an  absolute  right.  "It  was  in- 
tended to  secure  against  creditors  a  home,  and  to  a  certain 
extent  the  means  of  support  to  every  family  in  the  state": 
Dye  V.  Mann,  10  Id.  297;  McKee  v.  Wilcox,  11  Id.  358;  83 
Am.  Dec.  743. 

The  homestead  right  exists  in  favor  of  the  poor  and  the  rich 
alike.  It  is  for  the  support  of  the  one,  and  security  against 
want  and  destitution  for  the  other;  and  when  the  homestead 
claimed  to  be  protected  is  within  the  quantity  limited  by  the 
constitution,  and  occupied  by  the  owner,  such  occupancy  is 
itself  evidence  of  an  election  by  the  owner  of  the  parcel  occu- 
pied, and  a  notice  to  all  of  its  true  character  as  a  homestead, 
and  of  his  selection,  and  the  extent  thereof,  and  no  other  or 
further  notice  is  necessary  to  be  given  to  enjoy  the  fullest  pro- 
tection of  the  law:  Beecher  v.  Baldy,  7  Mich.  488;  Thomas  v. 
Dodge,  8  Id.  51. 

When  such  homestead,  in  amount  within  the  constitutional 
limit,  is  once  established  by  such  election,  selection,  and  occu- 
pancy, the  constitution  is  a  positive  prohibition  against  levy 
and  sale  by  the  owner's  creditors,  unless  it  exceeds  fifteen  hun- 
dred dollars  in  value:  Beecher  v.  Baldy,  supra;  Drake  v.  Kin- 
sell,  38  Mich.  232. 

If  the  creditor,  however,  thinks  the  homestead  thus  selected 
by  the  debtor  exceeds  in  value  the  sum  of  fifteen  hundred  dol- 


April,  1886.]  Riggs  v.  Sterling.  561. 

lars,  and  it  is  capable  of  division  so  as  to  leave  the  debtor  a-. 
homestead  worth  that  amount,  he  may  then  apply  to  a  courts 
of  equity,  and  have  the  division  made,  if  he  cannot  obtain  the- 
consent  of  the  debtor  to  a  division:  See  Beecher  v.  Baldy,  supra^ 

If,  however,  in  such  case,  or  in  any  other  case,  the  home- 
stead is  incapable  of  division,  then  the  sheriff  may  proceed 
under  the  statute;  and  under  proper  notice  to  the  defendant, 
and  under  proper  proceedings  taken,  have  the  homestead 
appraised,  and  if  found  incapable  of  division,  and  the  value 
exceeds  fifteen  hundred  dollars,  the  whole  property  may  be 
sold,  unless  the  debtor  shall  pay  the  judgment,  and  in  case  of 
sale,  fifteen  hundred  dollars  shall  be  reserved  for  the  debtor, 
and  which,  with  any  excess  after  satisfying  the  execution,  shall 
be  paid  over  to  him:  How.  Stat.,  sec.  7728. 

From  the  foregoing,  it  will  be  seen  in  no  case  where  the 
debtor  occupies  the  homestead,  and  it  is  within  the  constitu- 
tional limit,  and  is  capable  of  division,  whatever  may  be  its 
value,  is  he  required  to  take  any  steps  to  preserve  or  protect 
his  homestead  against  the  invasion  of  the  creditor  under  his 
levy  and  sale  on  his  execution,  before  he  seeks,  by  suit  in  the 
circuit  court,  to  have  division  made,  or  to  obtain  possessioa 
after  levy  and  sale,  as  in  this  case:  See  How.  Stat.,  c.  267. 

It  will  be  further  noticed  by  an  examination  of  the  provis- 
ions of  the  constitution  and  statute,  and  the  decisions  herein 
cited,  that  the  defendant  in  the  execution  is  only  bound  to 
take  the  initiative  in  preserving  and  protecting  his  homestead 
right  after  levy,  when  the  parcel  of  land  occupied  exceeds  in 
quantity  the  legal  limit,  and  no  election  or  selection  of  the 
homestead  has  been  made  by  the  debtor;  that  when  the  selec- 
tion has  been  made,  and  it  is  within  such  limit  as  to  quantity, 
excess  of  value  will  not  make  any  other  action  on  the  part  of 
the  debtor  necessary  until  after  the  appraisal  is  made;  and 
without  such  appraisal  made,  or  a  division  had  under  the 
order  or  decree  of  a  court  of  equity,  no  valid  sale  of  the  home- 
stead, or  any  part  thereof  so  selected  by  the  debtor,  can  be 
made  by  the  sheriff. 

The  homestead,  once  established,  can  never  be  waived  ex- 
cept by  abandonment,  or  alienated  except  by  deed  of  some 
kind:  Shoioers  v.  Robimon,  43  Mich.  512;  Wallace  v.  Harris^ 
82  Id.  380;  Amphlett  v.  Hihhard,  29  Id.  298. 

The  homestead  right,  however,  before  the  owner  has  made 
his  election  and  selection  in  the  manner  hereinbefore  set  forth, 
may,  all  parties  interested  therein  having  knowledge  of  the 

▲m.  St.  B«p.,  Vol.  L— M 


S62  RiGGs  V.  Sterling.  [Mich. 

facts,  be  waived  by  failing  to  make  such  election  and  selection 
before  sale  by  the  sheriflf:  Beecher  v.  Baldy,  7  Mich.  505;  Ste- 
venson V.  Jackson,  40  Id.  702;  Lamore  v.  Frisbie,  42  Id.  189; 
Matson  v.  Melchor,  42  Id.  477;  or  the  homestead  may  itself  be 
•entirely  lost  by  abandonment  by  all  the  parties  (if  no  minors) 
interested  therein  or  to  be  affected  thereby:  Wisner  v.  Farn- 
harUf  2  Id.  472;  Phillips  v.  Stauch,  20  Id.  369;  Bunker  v.  Pa- 
quette,  37  Id.  79;  Bissell  v.  Taylor,  41  Id.  702;  Dei  v.  Habel,41 
Id.  88. 

■No  waiver  of  the  homestead  right  by  the  husband  can  affect 
a  wife's  interest  therein:  Beecher  v.  Baldy,  7  Mich.  506;  Wil- 
liams V.  Starr,  5  Wis.  534;  Ring  v.  Burt,  17  Mich.  465;  97  Am. 
Dec.  200;  First  Nat.  Bank  of  Constantine  v.  Jacobs,  50  Mich. 
340;  neither  can  the  abandonment  or  waiver  of  the  homestead 
right  or  homestead  by  one  entitled  to  enjoy  the  same  affect  the 
interest  of  any  other  equally  entitled  thereto:  Showers  v.  Rob- 
inson,  43  Id.  513;  Griffin  v.  Johnson,  37  Id.  87,  92;  Allen  v. 
Shields,  72  N.  C.  504. 

The  defendant,  in  taking  her  deed  of  the  fee  of  this  home- 
stead, without  consideration,  of  her  husband,  did  not  affect  her 
homestead  right.  It  cannot  be  considered  in  fraud  of  cred- 
itors: Smith  V.  Rumsey,  33  Mich.  183;  Rhead  v.  Hounson,  46 
Id.  244;  Pulte  v.  Geller,  47  Id.  560;  O'Connor  v.  Boylan,  49  Id. 
210.  She  waived  nothing  by  so  doing:  Anderson  v.  Odell,  51 
Id.  492;  Vermont  Savings  Bank  v.  Elliott,  53  Id.  256.  The  law 
as  above  stated  has  been  applied  in  a  great  many  cases,  and 
has  in  many  instances  been  found  necessary  in  this  state  to 
secure  the  benefits  intended  to  our  people  under  the  constitu- 
tional and  statutory  provisions. 

We  think  their  necessity  is  quite  apparent  in  the  present 
case,  though  the  facts  are  but  meagerly  presented  in  the 
record. 

It  appears  that  defendant's  husband  was  living  until  after 
the  equity  of  redemption  on  the  sale  of  her  property  made 
by  the  sheriff  had  expired,  and  until  after  efforts  were  made  by 
the  plaintiff  to  obtain  possession  of  the  premises;  that  for  ten 
years,  at  least,  this  homestead  had  been  the  defendant's  only 
property;  that  the  husband  had  been  sick  for  a  number  of 
years;  that  he  was  nearly  eighty  years  of  age,  and  so  infirm 
as  not  to  be  able  to  work,  and  that  the  defendant,  who  was 
well  advanced  in  life,  was  obliged  to  carry  on  the  little  farm, 
and  do  much  of  the  work  in  the  field  herself  to  secure  a  living 
for  herself  and  husband;  that  while  thus  situated,  the  plaintiff 


April,  1886.]  Riggs  v.  Sterling.  563 

undertook  to  enforce  the  collection  of  his  debt  out  of  this  home- 
stead, under  a  levy  and  sale  thereof,  and  this  is  thus  far  his 
second  suit  which  has  reached  this  court  in  his  effort  to  deprive 
the  defendant  of  her  home  to  satisfy  his  claim. 

Should  the  contest  be  waged  against  her  much  longer,  even 
though  she  succeeds  in  the  end,  but  little  will  be  left  to  her 
for  future  support.  Especially  must  this  be  so  if  but  an  excess 
of  but  about  two  hundred  dollars  could  be  realized  upon  the 
sale  of  the  property,  and  even  that  amount  was  only  obtained 
on  the  plaintiflf  's  own  bid. 

This  price,  obtained  at  a  public  sale  of  the  property,  is 
claimed  by  the  plaintiff's  counsel  to  be  the  best  evidence  of 
its  actual  value.  This  may  or  may  not  be  so,  according  to  cir- 
cumstances. Many  times  the  homestead  property  might  be 
sold  for  a  sum  far  exceeding  its  actual  value.  For  instance, 
suppose  a  neighbor  adjoining  desired  the  parcel  for  a  building 
lot  to  accompany  his  farm;  under  such  circumstances,  he 
might  be  induced  to  pay  largely  in  excess  of  its  market  or 
actual  value  for  it.  Or  suppose  the  occupants  were  trouble- 
some and  annoying  to  the  neighbor,  and  he  wished  to  get  rid 
of  them,  as  is  not  unfrequently  the  case;  or  take  a  case  where 
the  creditor,  to  gratify  his  feelings  against  his  debtor  for  not 
making  payment,  should  see  fit  to  run  up  the  property  upon 
the  sale  to  an  unreasonable  amount,  — could  it  be  truthfully 
said  that  the  sum  obtained  under  such  circumstances  would 
represent  the  actual  or  market  value  of  the  property,  or  would 
be  the  best  or  even  good  evidence  of  what  it  actually  was? 
Would  it  be  the  value  the  framers  of  the  constitution  meant 
when  they  said  the  homestead  should  be  limited  to  fifteen 
hundred  dollars?  I  think  not.  A  sale  made  under  such  cir- 
cumstances would  only  be  a  mode  of  circumventing  the  object 
intended  by  the  constitution  when  the  provision  was  sought  to 
be  applied  to  the  precise  case  which  brought  the  law  into  ex- 
istence. Yet  this  sale  is  claimed  to  be  conclusive;  and  that 
in  ejectment  for  the  possession  of  the  property  under  it,  the 
defendant  cannot  bo  heard  to  dispute  the  value,  as  indicated 
by  such  a  sale. 

This  cannot  and  should  not  be  the  rule.  The  beneficent 
purpose  of  the  law  in  such  case  would  be  entirely  defeated, 
and  the  circuit  judge  did  right  in  overruling  the  objection  of 
plaintiff's  counsel  to  defendant's  showing  the  actual  value 
of  the  homestead,  upon  the  trial,  at  the  time  the  levy  was 
made. 


564  RiQGS  V.  Sterling.  [Mich. 

It  was  to  avoid  the  consequence  of  the  creditor's  taking  the 
course  I  have  in  the  cases  above  supposed,  and  others  which 
might  be  suggested,  that  the  legislature  provided  for  a  prelim- 
inary appraisal  of  the  homestead  before  sale;  also  that  the 
debtor  might  have  the  right  to  redeem  from  the  execution  levy 
without  further  expense  or  proceedings,  if  desired,  if  the  ap- 
praisal should  be  regarded  as  properly  made  and  just.  This 
is  what  the  defendant  asked  to  hav6  done  in  this  case. 

There  is  nothing  to  the  suggestion  of  plaintiff's  counsel  that 
the  defendant  aided  or  desired  the  sale  of  her  property,  or  that 
she  desired  to  cheat  the  creditors,  or  that  she  did  anything 
which  could  be  construed  into  a  waiver  or  abandonment  of 
her  homestead,  or  homestead  right  in  the  property.  We  do 
not  think  the  record  tends  to  show  any  such  thing;  but  on 
the  contrary,  that  she  not  only  claimed,  but  has  relied  upon, 
her  constitutional  rights;  and  if  she  was  mistaken  as  to  what 
they  were,  that  it  should  be  made  to  appear  by  a  fair  applica- 
tion of  the  rules  of  law  provided  for  the  determination  of  that 
question. 

The  value  of  this  homestead  was  really  the  only  question  to 
be  determined  in  this  case.  Six  witnesses  on  each  side  were 
allowed  to  testify  upon  the  subject,  and  no  more.  The  refusal 
to  allow  more  to  testify  on  the  part  of  the  plaintiff  is  assigned 
as  error;  but  we  think  there  was  no  abuse  of  discretion  on  the 
part  of  the  court  in  not  allowing  more  cumulative  evidence 
upon  this  point.  Under  the  circumstances  of  this  case,  I  can 
see  no  reason  why  a  larger  number  than  composed  the  panel  of 
jurors  to  try  the  cause  should  have  been  necessary. 

The  jury,  under  the  charge  of  the  court,  which  was  fair  and 
unexceptionable,  found  the  value  of  the  homestead  not  to  ex- 
ceed fifteen  hundred  dollars,  and  the  defendant  had  judgment 
accordingly. 

There  was  no  ruling  in  receiving  the  testimony  in  the  case 
which  was  erroneous.  Neither  do  I  think  anything  was  allowed 
to  go  to  the  jury  in  the  opening  or  closing  statements  of  coun- 
sel for  the  defendant  which  was  prejudicial  to  the  plaintiff,  or 
unwarranted  by  the  rules  of  practice  relating  to  that  subject. 

A  statement  of  facts  by  counsel  in  the  opening  to  the  jury, 
wholly  inadmissible  under  the  issue,  and  a  statement  of  facts 
admissible  under  the  issue  but  not  proved,  made  to  the  jury 
in  closing  the  case,  is  one  thing;  and  a  statement  in  the  open- 
ing, showing  the  bearing  of  facts  admissible  under  the  issue 
and  expected  to  be  proved,  and  showing  how  the  issues  in  the 


April,  1886.]  Riaas  v.  Sterling.  565 

case  are  to  be  naturally  affected  by  such  facts,  and  statements 
made  illustrating  the  relation  of  the  facts  one  to  another,  and 
showing  what  must  be  the  necessary  and  final  outcome,  and 
the  consequences  naturally  resulting  therefrom,  however  strong 
and  forcibly  presented,  and  however  much  they  may  be  calcu- 
lated to  appeal  to  the  feelings,  reason,  or  judgment,  are  other 
and  quite  different  things. 

In  the  first  case  the  statements  are  highly  prejudicial  and 
improper;  in  the  second,  entirely  proper,  and  not  unfrequently 
of  much  service  to  the  jury  in  arriving  at  a  correct  and  satis- 
factory conclusion.  I  had  occasion  to  express  my  views  in 
the  case  of  Maclean  v.  Scripps,  52  Mich.  236,  upon  this  sub- 
ject, and  I  have  as  yet  found  no'good  reason  to  change  them. 

We  do  not  consider  the  dower  question  raised  necessarily  in- 
volved in  the  case,  and  are  not  required  to  pass  upon  it  now. 

I  think  the  judgment  should  be  affirmed. 

Champlin,  J.  I  concur  in  what  Mr.  Justice  Sherwood  has 
said  relative  to  the  defendant's  right  to  maintain  the  posses- 
sion of  the  land  in  question  as  a  homestead. 

I  do  not  think  that  where  the  quantity  is  within  the  consti- 
tutional limit,  but  is  claimed  by  the  creditor  to  exceed  the 
value  of  a  constitutional  homestead,  the  creditor  can  ignore 
the  provisions  of  the  statute,  and  proceed  to  a  sale,  and  try 
the  value  of  the  homestead  in  an  action  of  ejectment. 

The  statute  points  out  the  method  of  proceeding  in  such 
case,  and  must  be  followed,  or  the  sale  is  unauthorized.  In 
this  case  all  the  testimony  regarding  the  sale,  as  well  as  the 
value  of  the  property,  was,  in  my  opinion,  improperly  admit- 
ted in  evidence. 

The  circuit  judge  should  have  directed  a  verdict  for  the  de- 
fendant. 

Campbell,  C.  J.,  dissented. 

Homestead  Statutes  ake  Liberally  Construed:  Deere  v.  Chapman,  79 
Am.  Dec.  350. 

Sai.e  of  Homestead  ukder  Execution:  See  Blue  t.  Blue,  87  Am.  Deo. 
267,  and  note  discussing  the  question  at  length. 

Homestead  can  be  Conveyed  or  Encumbered  only  as  Prkscribko 
BY  Statutb:  Ring  ▼.  Burt,  97  Am.  Dec.  200,  and  not«. 


566  Detroit  Base-ball  Club  v.  Deppert.        [Mich. 

Detroit  Base-ball  Club  v.  Deppeet 

[61  MlCEIGAH,  63.] 
CoxmTS  CANNOT  LlMIT  ExTENT,  UP  OR  DOWN,  TO  WHICH    OnE  MAT    EnjOT 

HIS  Property,  and  if  ho  goes  higher  than  his  neighbor,  without  inter- 
fering with  the  rights  of  others  or  injuring  his  neighbor,  he  subjects 
himself  to  no  liability. 
Injcnction  will  not  Lie  to  Restrain  Land-owner  from  Erecting  and 
Using  a  structure  on  his  premises  to  overlook  exhibitions  on  adjoining 
grounds  to  which  an  admission  fee  is  charged,  as  those  of  a  base-ball 
club,  where  it  does  not  appear  that  the  complainant  enjoys  any  exclusive 
franchise  from  the  legislature,  or  under  any  provision  of  the  city  charter 
or  by-laws,  or  under  any  resolution  or  other  action  of  the  city  council, 
in  the  use  of  its  grounds.  If  in  such  case  the  complainant  has  been 
pecuniarily  injured,  the  remedy  at  law  is  wholly  adequate. 

Injunction.    The  opinion  states  the  case. 
John  A.  Bell,  for  the  complainant. 
George  X.  M.  Collier,  for  the  defendant. 

By  Court,  Sherwood,  J.  The  complainant  is  a  corporation, 
organized  under  the  laws  of  this  state  for  the  purpose  of  en- 
gaging in  rowing,  fishing,  hunting,  and  other  lawful  sporting 
purposes,  and  to  promote  and  encourage  playing  the  game  of 
base-ball. 

The  defendant  lives  in  the  city  of  Detroit,  residing  in  a 
house  upon  a  lot  which  he  owns,  and  upon  which  he  also  has 
a  barn.  On  Brady  Street,  in  the  city,  the  complainant  occu- 
pies under  a  lease  a  parcel  of  land  adjoining  that  of  the 
defendant,  and  which  is  inclosed  by  a  high  board  fence.  This 
place  is  called  Recreation  Park,  and  is  used  by  the  plain- 
tiff as  its  play-ground,  in  which  its  games  are  played  and 
Bports  conducted. 

The  company  is  a  member  of  the  National  Base-ball 
League,  which  consists  of  eight  cjubs,  each  of  which  plays  a 
game  against  each  of  the  others.  At  the  games  in  the  park 
a  large  number  of  persons  are  usually  present,  and  an  admit- 
tance fee  of  fifty  cents  is  charged  by  the  company  to  those 
who  are  not  members  of  the  club,  and  good  accommodations 
have  been  provided,  at  large  expense  to  the  club,  for  the  use 
of  spectators. 

The  bill  of  complaint  states  that  the  club  had  several  games 
to  play,  under  engagements  made  with  other  companies,  at  the 
park  during  the  year  1885,  when  this  suit  was  commenced; 
that  the  base-ball  season  begins  in  May,  and  continues  until 


I 


April,  1886.]     Detroit  Base-ball  Club  v.  Deppert.        567 

October,  in  each  year,  and  that  during  the  season  fifty-six 
games  are  played. 

Complainant  further  avers  that  the  expenses  of  the  club  are 
over  three  thousand  dollars  per  month,  and  that  the  company 
relies  largely  upon  the  admittance  fees  to  defray  such  ex- 
penses; that  the  games  of  the  club  and  all  of  its  entertain- 
ments are  conducted  with  propriety,  and  nothing  illegal  or 
offensive  to  the  spectators  is  permitted,  and  their  games  and 
sports  have  the  confidence  and  support  and  patronage  of  the 
public;  that  the  club  has  used  every  reasonable  means  to  pro- 
tect itself  in  the  rightful  use  and  enjoyment  of  the  property 
used  by  it;  that  for  this  purpose  the  fence  inclosure  has  been 
made  nine  feet  high,  and  at  some  points,  where  persons  out- 
side have  annoyed  the  company,  and  damaged  it  by  attempts, 
partially  successful,  to  witness  the  games  without  paying  the 
entrance  fee,  the  fence  and  protecting  screens  have  been  made 
much  higher. 

The  bill  then  alleges: — 

"11.  That  the  defendant  has  constructed  upon  land  occu- 
pied by  him  on  the  south  side  of  Leland  Street,  in  close  prox- 
imity to  the  grounds  leased  and  occupied  by  your  orator,  a 
stand  for  the  accommodation  of  persons  who  desire  to  see  the 
games  played  on  the  grounds  of  your  orator. 

"  12.  That  said  stand  is  erected  upon  the  roof  of  a  barn  or 
other  building,  has  steps  leading  up  to  it,  so  that  spectators 
can  readily  have  access  thereto,  and  is  of  such  a  height  as  to 
overlook  the  grounds  of  your  orator,  and  gives  the  persons 
thereon  an  opportunity  to  witness  the  games  played  upon  said 
grounds;  that  said  stand  was  erected  by  said  John  Deppert, 
Jr.,  for  the  purpose  of  enabling  persons  whom  he  might  admit 
thereto  to  witness  the  games  of  base-ball  played  on  said  Recre^ 
ation  Park  by  your  orator,  and  for  no  other  purpose. 

'*  13.  That  said  stand  has  been  heretofore  occupied  by  a 
considerable  number  of  persons,  at  sundry  and  divers  games 
played  upon  the  grounds  of  your  orator,  during  the  season 
which  began  on  the  first  day  of  May,  1885,  the  number  of  per- 
sons BO  occupying  the  stand  reaching  from  twenty-five  to  one 
hundred  at  each  game. 

"  14.  That  an  admission  fee  is  generally  charged  to  such 
stand  by  the  said  defendant,  but  the  fee  so  charged  is  much 
less  than  that  charged  by  your  orator,  so  that  your  orator  is 
deprived  of  profits  which  would  otherwise  inure  to  it  in  the 
legitimate  use  of  its  property. 


668  Detroit  Base-ball  Club  v.  Deppert.        [Mich. 

"  15.  That,  although  requested  so  to  do  by  your  orator,  said 
John  Deppert,  Jr.,  refuses  to  refrain  from  using  said  stand  for 
the  purpose  of  enabling  spectators  to  witness  therefrom  the 
games  played  upon  the  grounds  of  your  orator;  that  he  keeps 
said  stand  upon  his  premises,  ready  for  use  whenever  a  game 
is  played  by  your  orator,  and  threatens  so  to  use  said  stand 
whenever  a  game  is  played  hereafter  by  your  orator;  and  that 
your  orator  is  informed  and  believes,  and  charges  the  fact  to 
be,  that  said  defendant  is  financially  wholly  irresponsible; 
that  the  nuisance  to  your  orator  so  maintained  by  him  is  a 
constantly  recurring  one,  and  your  orator  has  no  adequate 
remedy  at  law." 

The  bill  prays  that  the  defendant  may  be  perpetually  en- 
joined from  making  the  use  of  his  buildings  and  premises  in 
the  manner  alleged  by  complainant  to  be  injurious  to  its  in- 
terest, and  for  general  relief. 

The  answer  admits  substantially  the  averments  contained 
in  the  bill,  as  above  stated,  except  as  contained  in  the  fore- 
going paragraphs  numbered  11,  12, 13, 14,  and  15,  and  further 
eays  that  the  erection  of  the  high  board  fence  has  seriously 
damaged  his  premises,  and  that  the  ball  plays  have  seriously 
injured  the  quiet  use  of  his  premises,  and  that  both  are  an 
intolerable  nuisance;  that  the  members  of  the  company,  when 
playing,  frequently,  in  pursuit  of  the  ball,  trespass  upon  de- 
fendant's premises,  and  that  often  he  has  been  obliged  to  call 
to  his  aid  the  police  to  quell  fights  and  brawls  of  the  roughs 
who  assemble  there  to  witness  the  games,  and  he  is  greatly 
disturbed  in  the  peaceable  possession  of  his  property  thereby; 
that  paragraphs  11,  12,  13,  and  14  are  admitted,  except  so  far 
as  they  allege  his  stand  was  erected  for  any  unlawful  purpose, 
or  to  the  injury  of  complainant,  and  as  to  these  averments, 
they  are  denied. 

He  further  states  in  his  answer  that  he  erected  his  .bam, 
and  the  stand  on  the  roof,  and  that  at  times  his  friends  con- 
gregated there,  and  that  he  sells  refreshments  there;  that  the 
premises  belong  to  him;  that  the  erections  thereon  have  been 
examined  by  the  board  of  building  inspectors  of  the  city,  and 
pronounced  safe  and  secure;  that  he  uses  his  premises  at 
times  for  the  purposes  of  amusement,  and  as  a  means  of  rev- 
enue for  the  sale  of  refreshment,  and  that  he  has  the  legal 
right  so  to  do,  so  long  as  he  obeys  the  law;  that  he  erected 
the  stand  only  when  the  high  board  fence  was  erected  so  as  to 
disturb  him  in  his  rights  to  enjoy  his  property  and  the  pure 


April,  1886.]    Detroit  Base-ball  Club  v.  Deppert.       569 

air  and  unobstructed  views  in  the  outlook,  equally  with  his 
neighbors;  and  he  admits  that  he  does  refuse  to  accede  to 
the  request  of  the  complainant  to  refrain  from  the  use  of  his 
premises  to  gratify  the  pleasure  of  his  neighbors  and  friends 
in  the  manner  above  stated. 

He  further  denies  that  he  is  irresponsible  or  insolvent,  and 
expressly  avers  that  he  is  worth  over  three  thousand  dollars, 
over  and  above  all  exemptions  in  real  and  personal  property. 
He  also  denies  that  his  property,  or  the  use  he  makes  of  it,  is 
a  nuisance,  and  insists  that  if  defendant  has  any  grievance,  as 
alleged  in  the  bill,  its  remedy  is  perfect  at  law.  The  answer 
was  sworn  to  by  the  defendant. 

The  cause  was  heard  on  pleadings  before  Judge  Chipman 
in  the  superior  court  of  Detroit,  who  dismissed  complainant's 
bill,  with  costs. 

We  think  the  case  was  correctly  decided,  and  the  decree 
entered  is  right. 

It  does  not  appear  that  the  complainant  enjoyed  any  exclu- 
sive franchise  emanating  from  the  legislature,  or  under  any 
provision  of  the  charter  or  by-laws  of  the  city,  or  under  any 
resolution  or  other  action  of  the  city  council,  in  the  use  it 
made  of  the  park,  or  that  it  had  any  right  to  control  the  use, 
in  any  manner,  of  the  adjoining  property.  Neither  does  it 
show  that  any  persons  visiting  the  refreshment-stand  of  the 
plaintifT  would  have  otherwise  paid  the  admittance  fee  and 
entered  the  complainant's  park,  or  that  the  defendant  in  any 
manner  prevented  them  from  so  doing  if  they  wished.  It  is 
difiBcult  to  see  how  the  complainant  has  been  pecuniarily  in- 
jured, and  this  is  the  grievance  of  the  complaint;  but  if  it  has, 
the  remedy  at  law  is  entirely  adequate.  Courts  cannot  limit 
the  extent,  up  or  down,  to  which  a  man  may  enjoy  his  prop- 
erty; and  if  he  goes  higher  than  his  neighbor,  so  long  as  he 
does  not  interfere  with  the  rights  of  others,  or  injure  his  neigh- 
bor,  be  subjects  himself  to  no  liability. 

The  decree  must  be  aflBrmed,  with  costs. 

Campbell,  C.  J.,  dissented. 

iKJVNcrnoN  OUGHT  NOT  TO  BE  GRANTED  unless  the  injury  ia  pressing,  and 
the  delay  dangerous,  and  there  is  no  adequate  remedy  at  law:  Ooodrich  v. 

I  Moore,  72  Am.  Dec.  74,  and  note  78;  Mayor  etc.  v.  Oroahon,  96  Id.  691, 
and  note  596;  Rkliard's  Appeal,  93  Id.  202,  and  note  206;  Kennerty  v.  EU- 
van  P/io»phaU  Co.,  43  Am.  Rep.  607. 
Courts  will  Restrain  Erectio.v  or  Building  Intended  for  Use 
THAT  WILL  BE  NuUANCES  PER  Se:  liliodes  V.  Dunbar,  98  Am.  Dec.  221,  and 
■M  aote22d. 


570  House  v.  House.  [Mich. 

Whik  iNJtmcnoN  will  Lik  ttndeb  Statctb  FoEBiDDiNa  Malicious 
Erections  to  annoy  and  injure  adjacent  proprietors:  OaUagher  v.  Dodge, 
40  Am.  Rep.  182. 

OwNEB  OF  Real  Estate,  of  Which  Another  has  Taken  Unauthor- 
ized Possession,  cannot  have  Him  Enjoined  from  making  a  legal  use  of 
the  premises,  although  it  is  one  which  the  landlord  disapproves:  BodweU  v. 
Crawford,  40  Am.  Rep.  306. 


House  v.  House. 

[61  MiCHIOAK,  69.] 

Privileged  Communication  must  be  Made  for  Purpose  of  Obtaining 
Legal  Advice  upon  the  client's  business  or  interests.  A  conversation 
between  two  persons  in  the  presence  of  an  attorney,  employed  by  them 
to  prepare  a  paper  in  connection  with  the  subject  of  the  conversation,  is 
not  privileged,  and  the  testimony  of  the  attorney  concerning  the  con* 
versation  is  competent. 

Assumpsit.  Privileged  communication.  The  opinion  states 
the  case. 

Dodda  Brothers,  for  the  defendant  and  appellant. 

E.  D.  JVheaton,  for  the  plaintiff. 

By  Court,  Campbell,  C.  J.  Plaintiff  and  his  brother,  Alfred 
House,  sons  of  defendant,  being  entitled  to  legacies  from  their 
grandmother's  estate  in  England,  had  made  arrangements 
to  have  their  money  remitted  to  them  severally  by  drafts. 
About  the  time  these  were  to  arrive  from  England,  they  went 
to  the  oflSce  of  William  N.  Brown,  of  Mt.  Pleasant,  and  em- 
ployed him  to  draw  a  power  of  attorney  to  defendant  to  in- 
dorse the  drafts  and  receive  the  money,  which  he  did. 

Plaintiff  sued  his  father  for  the  sum  remitted  in  his  favor, 
and  in  the  court  below  recovered  the  full  amount.  Alfred 
swore  that  before  they  went  to  have  the  paper  prepared  they 
had  concluded  to  give  the  money  to  defendant,  and  that  while 
in  Mr.  Brown's  ofl&ce  they  had  a  conversation  in  his  presence 
in  which  plaintiff  said  that  his  father  was  an  old  man,  and 
had  worked  hard,  and  had  a  large  family,  and  that  he  was 
glad  he  was  able  to  help  his  father  by  giving  him  that  amount. 
This  plaintiff  denied,  and  no  third  person  was  present  but 
Brown,  as  defendant  was  not  there,  and  received  the  power 
subsequently. 

Mr.  Brown  being  called  to  testify  concerning  the  conversa- 
tion in  his  office,  objection  was  made,  and  it  was  ruled  out  as 


April,  1886.]   Shickle  etc.  Iron  Co.  v.  Construction  Co.    571 

a  privileged  communication.  This  is  the  only  question  in  the 
case,  the  jury  finding  for  plaintiff.     Defendant  brings  error. 

There  is  nothing  in  the  case  to  make  this  a  privileged  com- 
munication. It  took  place  with,  as  well  as  in  presence  of,  a 
third  person,  who  testified  concerning  it.  It  was  not  a  com- 
munication made  for  the  purpose  of  obtaining  legal  advice 
upon  plaintifi''s  business  or  interests.  There  appears  to  have 
been  neither  confidential  dealing  nor  confidence  concerning 
any  professional  business.  It  falls  outside  of  any  known  rule, 
and  is  within  previous  decisions  of  this  court:  Alderman  v. 
People,  4  Mich.  414;  69  Am.  Dec.  321;  Hartford  Fire  Im.  Co. 
v.  Reynolds,  36  Id.  502. 

The  testimony  was  competent.  The  judgment  must  be 
reversed,  with  costs,  and  a  new  trial  granted. 


PErvTLEGED  COMMUNICATIONS,  What  ake:  Thompson  V.  Kilboime,  67  Am. 
Dec.  742,  and  note  745;  DeWoJfy.  Strader,  79  Id.  371,  and  note  373;  Mitchell 
V.  Bromherger,  90  Id.  550,  and  cases  collected  in  note  554;  Snow  v.  Oould,  43 
Am.  Rep.  604;  Boot  v.  Wright,  38  Id.  495;  Bacon  v.  Frisbie,  36  Id.  627;  Hoi- 
lia  V.  Meux,  68  Id.  574. 

Pkivilege  to  Exclude  Evidencb  of  Communications  between  At- 
torney AND  Client  is  Personal  to  Client,  and  he  may  waive  it:  Pass- 
more  v.  Passmore,  45  Am.  Rep.  62. 

Partt  Who  Offers  Himself  as  Witness  cannot  Refuse  to  Answer 
Questions  on  Cross-examination  as  to  any  conversation  with  his  counsel: 
Inhabitanta  etc  v.  Henahav),  3  Am.  Rep.  333. 


Shioklb  etc.  Iron  Company  v,  S.  L.  Wiley  Con- 
struction Company. 

[Cl  MiCHIOAN,  226.1 

It  is  not  Necessary  under  Michigan  Statitte  (How.  Stat,,  Sec.  8145) 
that  Officer  or  Agent  of  Foreign  Corporation,  upon  whom  service 
is  made  while  in  the  state,  should  he  in  the  state  upon  official  businesa 
for  his  corporation,  or  be  specially  authorized  by  it  to  receive  service  of 
process.  He  must  be  presumed  and  held  to  be  such  officer  for  the  pur- 
poses of  the  statute,  and  he  cannot  throw  off  his  representative  capacity 
at  will,  in  order  to  defeat  its  manifest  object. 

Where  Bad  Plea  is  Filed,  without  Notice  to  Plaintiff  of  its  Filing, 
Better  Practice  is  to  move  to  strike  it  from  the  files;  but  the  service 
of  process  being  good,  the  action  of  the  plaintiff  in  proceeding  to  judg- 
ment without  noticing  the  plea  is  a  mere  irregularity,  harmless  to  the 
defendant,  and  does  not  affect  the  jurisdiction  of  the  court. 

Assumpsit.    The  statute  referred  to  in  the  opinion  is  as  fol- 
lows: "Suits  may  be  commenced  at  law  or  in  equity  in  the 


572        Shickle  etc.  Iron  Co.  v.  Construction  Ca       [Mich. 

circuit  court  for  any  county  of  this  state  where  the  plaintiff  re- 
sides, or  service  of  process  may  be  had,  and  in  cases  where  the 
plaintiff  is  a  non-resident,  in  any  county  of  the  state,  against 
any  corporation  not  organized  under  the  laws  of  this  state,  in 
all  cases  where  the  cause  of  action  accrues  within  the  state  of 
Michigan,  by  service  of  a  summons,  declaration,  or  chancery 
subpoena,  within  the  state  of  Michigan,  upon  any  officer  or 
agent  of  the  corporation,  or  upon  the  conductor  of  any  railroad 
train,  or  upon  the  master  of  any  vessel  belonging  to  and  in  the 
service  of  the  corporation  against  which  the  cause  of  action 
has  accrued;  provided,  that  in  all  such  cases  no  judgment 
shall  be  rendered  for  sixty  days  after  the  commencement  of 
suit;  and  the  plaintiff  shall,  within  thirty  days  after  the  com- 
mencement of  suit,  send  notice  by  mail  to  the  corporation  de- 
fendant at  its  home  office  ":  How.  Stat.,  sec.  8145. 

William  A.  Underwood  and  Henry  M.  Cheever,  for  the  de- 
fendant and  appellant. 

George  F.  Edwards,  for  the  plaintiff. 

By  Court,  Morse,  J.  The  plaintiff  in  this  action  brought 
suit  against  the  defendants  upon  a  draft  drawn  at  Richmond, 
Indiana,  by  the  S.  L.  Wiley  Construction  Company,  per  S.  L. 
Wiley,  president,  upon  the  Niles  Water  Works,  at  Niles,  Mich- 
igan, for  $2,499,  payable  to  the  order  of  plaintiff  four  months 
after  date. 

Proper  service  was  had  upon  the  drawee,  and  service  was 
made  upon  the  S.  L.  Wiley  Construction  Company  by  deliver- 
ing a  copy  of  the  declaration,  with  notice  of  entry  of  rule  to 
appear  and  plead,  etc.,  to  Solon  L.  Wiley,  president  of  said 
corporation,  at  the  city  of  Niles,  on  the  twenty-second  day  of 
July,  1885. 

On  the  thirty-first  day  of  July,  1885,  the  said  corporation 
defendant  filed  in  the  cause  a  plea  in  abatement,  setting  forth 
that  it  was  a  foreign  corporation,  created  by  and  existing  under 
the  laws  of  Massachusetts,  having  its  domicile  and  principal 
office  at  Greenfield,  in  said  state,  and  that  no  original  writ  of 
summons,  nor  declaration,  or  other  process  or  legal  notice,  had 
been  served  upon  it  in  this  state;  that  it  has  no  officer,  agent, 
or  attorney  in  Michigan  authorized  to  receive  service  of  legal 
process,  or  to  appear  for  it  in  legal  proceedings  in  the  circuit 
court  for  the  county  of  Berrien,  where  this  action  was  pending, 
without  special  direction;  that  none  of  its  officers  or  agents 


April,  1886.]   Shickle  etc.  Iron  Co.  v.  Construction  Co.    573 

reside  in  Michigan,  or  have  any  ofiBce  or  place  of  business 
therein,  and  that  it  has  not  authorized  any  agent  or  any  one 
to  appear  for  it  in  this  action,  except  for  the  special  purpose  of 
objecting  to  the  jurisdiction  of  the  court. 

That  Solon  L.  Wiley,  upon  whom  the  declaration  was  scr\'cd, 
was  not,  at  the  time  of  such  service,  in  the  state  of  Michigan 
on  official  business  for  the  said  defendant,  nor  in  any  official 
character  as  the  officer  of  such  corporation,  nor  otherwise  thaa 
casually  and  accidentally,  and  not  as  representing  the  defend- 
ant; and  that  he  was  not  authorized  to  receive  service,  nor  to- 
represent  it  as  an  officer  or  otherwise. 

This  plea  was  verified  by  said  Solon  L.  Wiley,  who  deposes 
in  the  jural  that  he  is  president  of  the  S.  L.  Wiley  Construc- 
tion Company,  and  makes  the  affidavit  in  its  behalf  and  by 
its  direction. 

It  does  not  appear  from  the  record  that  any  notice  of  X\\& 
filing  of  this  plea  was  ever  served  upon  plaintiff's  attorney. 

August  13,  1885,  the  Niles  Water  Works  pleaded  the  gen- 
eral issue. 

The  plaintiff,  without  paying  any  attention  to  this  plea  of 
the  construction  company,  proceeded  to  enter  its  default,  to 
make  it  absolute,  assess  damages,  and,  upon  the  trial  of  the 
issue  made  by  the  Niles  Water  Works,  entered  a  joint  judg- 
ment against  both  defendants. 

The  S.  L.  Wiley  Construction  Company  asks  a  reversal  of 
this  judgment  as  to  it,  claiming  no  proper  service,  as  stated 
in  its  plea,  and  also  alleging  that  the  plaintiff  could  not  pro- 
ceed, even  if  the  court  obtained  jurisdiction  by  tlie  service  of 
the  declaration  upon  Wiley,  without  first  joining  issue  upon 
the  plea  filed  by  it,  or  moving  to  strike  it  from  the  files. 

In  favor  of  the  first  proposition,  we  are  referred  to  the  case 
of  Newell  v.  Great  Western  R'y  Co.,  19  Mich.  336.  Since  that 
decision,  the  legislature  has  provided  for  suits  by  and  against 
foreign  corporations  in  this  state.  The  obvious  intent  of  this 
statute,  in  our  opinion,  was  to  remedy  the  defects  in  the  prior 
laws,  as  indicated  in  the  opinion  filed  in  the  Newell  case. 
There  is  no  dispute  in  the  present  case  but  that  Wiley  was 
president  of  the  corporation  at  the  time  the  service  was  made 
upon  him. 

We  cannot  hold,  under  the  statute  above  referred  to,  that 
the  officer  or  agent  of  the  corporation  within  this  state  must 
be  here  upon  official  business  for  his  cor|X)ration,  or  specially 
authorized  by  it  to  receive  service.     To  do  this  would  be  to- 


574        Shickle  etc.  Iron  Co.  v.  Construction  Co.       [Mich. 

allow  the  individual  upon  whom  the  service  is  made  to  deter- 
mine in  most  cases  for  himself,  without  fear  of  successful 
contradiction,  whether,  at  the  particular  moment  of  such  ser- 
vice, he  was  acting  as  such  officer  or  agent,  or  as  a  private 
person.  It  would  have  a  tendency  to  thwart  the  special  pur- 
pose and  object  of  the  statute,  and  such  we  do  not  think  was 
the  intent  of  the  legislature.  The  officer  or  agent  must  be 
presumed  and  held  as  such  for  the  purposes  of  service  under 
the  statute,  and  cannot  throw  oflF  his  representative  capacity 
at  will,  as  he  would  an  outer  garment,  in  order  to  defeat  its 
manifest  object. 

No  doubt  but  the  better  practice  in  this  case  would  have 
been  to  have  moved  to  strike  this  plea  from  the  files.  But  no 
notice  having  been  served  upon  the  plaintiff  of  its  filing,  and 
the  fact  being  undisputed  and  admitted  that  Wiley  was  the 
president  of  the  corporation,  and  therefore  the  service  good 
and  the  plea  bad,  under  our  construction  of  the  statute,  the 
proceeding  to  judgment  without  noticing  the  plea  was  a  mere 
irregularity,  doing  no  harm  to  defendant,  and  not  affecting 
the  jurisdiction  of  the  court. 

If  the  defendant  corporation  had  filed  an  affidavit  of  merits, 
and  asked  that  the  default  might  be  opened  or  the  judgment 
vacated  in  the  court  below,  there  might  have  been  good  ground, 
in  the  discretion  of  that  court,  for  granting  such  an  applica- 
tion. But  it  has  contented  itself  with  attacking  the  jurisdic' 
tion  of  the  court  on  writ  of  error;  and  the  defect,  if  any,  in 
the  proceedings  to  judgment  after  the  filing  of  the  plea  is  one 
of  irregularity  in  practice,  and  not  one  operating  in  any  waj 
upon  the  jurisdiction. 

The  judgment  is  therefore  affirmed,  with  costs. 


Service  of  Process  ok  Foreign  Corporation:  See  Ham'pson  v.  Weare, 
66  Am.  Dec.  116,  and  extended  note  121;  Mineral  Point  R.  R.  Co.  v.  Keep,  74 
Id.  124,  and  note  133;  Andretos  v.  Micldgan  Central  R.  R.  Co.,  97  Id.  51; 
Gibba  v.  Queen  Ins.  Co.,  20  Am.  Rep,  513. 

Service  of  Process  itpon  Officer  of  Foreign  Corporation,  Who  ii 
Temporarily  in  Another  State,  and  who  does  not  voluntarily  appear  U 
the  action,  does  not  give  the  courts  of  that  state  jurisdiction  over  the  corpo 
ration:  Latimer  v.  Union  Pacijie  R'y,  97  Am.  Dec.  378. 

Striking  out  Pleas  and  Defenses:  See  People  v.  McCumber,  72  Am.  Dec, 
515,  and  extended  note  521;  Hayvoard  v.  Orant,  97  Id.  228. 


April,  1886.]  Hall  v.  Kimmeb.  675 

Hall  v.  Kimmer. 

[61  Michigan,  269.] 

Charge  beyond  Ten  Dollars  for  Services  in  Obtaining  Pension  is, 
CNDER  Laws  of  United  States,  against  Public  Policy,  and  cannot  be 
sustained;  and  the  money  taken  beyond  the  amount  allowed  for  such 
services  may  be  recovered  back  by  the  pensioner  aa  money  received  for 
his  use. 

Claim  Which  is  Illegal  and  Absolutely  Forbidden  by  Statute  can- 
not lawfully  be  made  the  subject  of  arbitration. 

Federal  Statute  Limitino  Feb  Recoverable  for  Obtainino  Pension  is 
Intended  for  protection  of  the  soldier  and  his  family  from  unreasonable 
and  unjust  exactions  on  the  part  of  agents  who  assume  to  act  in  his  in- 
terest  in  collecting  hia  pension,  and  should  be  applied  by  the  courts, 
when  invoked,  in  such  a  manner  aa  to  afford  the  protection  intended. 

Assumpsit.    The  opinion  states  the  case. 
Henry  A.  Shaw,  for  the  plaintiff  and  appellant. 
Herbert  E.  Winsor,  for  the  defendant. 

By  Court,  Sherwood,  J.  The  action  in  this  case  is  assump' 
nt,  brought  before  a  justice  of  the  peace. 

The  plaintiff's  declaration  was  verbal  upon  all  the  common 
counts,  and  added  thereto  was  a  special  count  on  a  contract 
for  services  of  the  plaintiff  in  obtaining  pension  money  to 
which  the  defendant  was  entitled  from  the  general  government, 
whereby  the  plaintiff,  under  the  arrangement,  was  to  have 
not  less  than  a  quarter,  and  not  more  than  one  half,  of  the 
amount  received  in  case  of  success,  and  nothing  in  the  case  of 
failure. 

Defendant's  plea  was  the  general  issue  and  notice  of  set-off, 
and  he  further  gave  notice  that  he  would  show  on  the  trial 
that  if  the  plaintiff  had  any  agreement  with  him  for  services 
it  was  while  ho  was  acting  as  his  agent  in  obtaining  his  pen- 
sion from  the  government  for  defendant's  services  as  a  soldier 
in  the  war  of  the  Rebellion. 

On  the  trial  of  the  case  before  the  justice,  the  plaintiff  re- 
covered the  sum  of  three  hundred  dollars. 

Defendant  appealed  the  case  to  the  circuit  court  for  the 
county  of  Calhoun,  where  the  cause  was  retried  before  Judge 
Hooker  without  a  jury. 

Upon  the  trial  it  was  made  to  appear  that  the  plaintiff  col- 
lected pension  money  to  the  amount  of  $1,500,  and  that  the  de^ 
fendant  paid  him  for  his  services  $150.  The  plaintiff  ther 
offered  to  prove  that  the  parties  submitted  the  plaintiff'' 


676  Hall  v.  Kimmer.  [Mich. 

furtlier  claim  for  services  to  arbitrators,  and  that  the  arbitra- 
tors made  an  award  that  the  defendant  should  pay  the  plain- 
tifif  the  further  sum  of  $100.  This  testimony,  being  objected 
to,  was  ruled  out,  and  the  ruling  was  excepted  to  by  plaintiff's 
counsel. 

After  the  testimony  in  the  case  was  taken,  the  circuit  judge 
found  the  following  facts:  — 

"  1.  Plaintiff  was  engaged  in  the  business  of  practicing  law 
in  justices'  courts,  and  in  procuring  pensions  through  a  firm 
of  claim  agents  at  Washington,  D.  C. 

"  2.  His  mode  of  doing  business  was  to  send  to  said  firm  the 
names  of  persons  who  had  been  in  the  service,  receiving  in 
return  from  said  firm  cards  upon  which  were  printed  questions 
to  be  answered  in  writing  thereon.  The  questions  were  writ- 
ten by  him,  and  returned  to  the  agents  in  Washington,  who 
prepared  and  sent  forward  to  him  proper  papers,  and  if  pos- 
sible, procured  the  allowance  of  the  claim,  in  which  case  they 
paid  plaintiff  for  his  services. 

"  3.  Defendant,  believing  himself  entitled  to  a  pension,  asked 
plaintiff^s  advice  about  the  matter,  and  what  he  would  charge 
to  assist  him  in  getting  it.  Plaintiff  said  he  had  received 
different  prices,  depending  on  the  amount  paid  out  for  ex- 
penses,—  in  some  cases  one  fourth  and  in  others  one  half  the 
amount  procured, — but  as  he  could  not  lawfully  contract  for 
over  ten  dollars,  he  would  have  to  leave  it  to  defendant  to  say 
what  he  should  have.  Defendant  thereupon  told  him  to  go 
on,  and  he  would  pay  all  expenses,  and  what  was  right  for 
plaintiff's  services.     This  was  in  1879. 

"4.  Plaintiff  procured  and  returned  card  mentioned,  and 
went  with  defendant  to  get  application  signed,  and  also  per- 
formed other  services  in  the  way  of  obtaining  proof,  writing^ 
and  receiving  letters,  etc. 

"  5.  Defendant's  application  was  finally  allowed,  whereupon 
he  paid  the  plaintiff  ten  dollars  as  and  for  the  fee  of  the 
Washington  firm,  taking  their  receipt  signed  by  plaintiff  as 
agent  therefor.  Neither  considered  it  as  including  any  com- 
pensation to  plaintiff. 

"  6.  Plaintiff  never  forwarded  this  money  to  the  Washington 
firm,  claiming  it  to  be  his  due  from  them  on  other  claims,  and 
he  authorized  by  them  to  retain  it. 

"  7.  Defendant  subsequently  paid  plaintiff  the  sum  of  $150" 
for  his  services  out  of  the  money  received  from  the  govern- 
ment as  pension  upon  said  allowance. 


April,  1886.]  Hall  v.  Kimmer.  577 

"8.  Plaintiff  brought  this  action  to  recover  a  further  sum, 
and  took  judgment  in  court  below  for  three  hundred  dollars. 

"  9.  No  definite  proof  was  made  as  to  plaintiff's  expenses  or 
disbursements." 

The  conclusions  of  law  are  as  follows: — 

"  1.  Plaintiff  was  a  claim  agent,  within  the  meaning  of  the 
law,  and  entitled  to  no  more  than  ten  dollars  for  procuring 
the  pension.  This  was  full  compensation  for  all  he  should  do, 
or  procure  to  be  done  by  his  Washington  correspondent. 

"  2.  Having  received  ten  dollars  for  procuring  said  pension, 
he  can  recover  no  more  for  his  services. 

"3.  The  payment  of  $150  was  without  consideration,  and, 
BO  far  as  defendant  is  concerned,  unlawful,  and  may  be  recov- 
ered back  by  way  of  set-off. 

"4.  Defendant  should  take  judgment  for  $150,  and  costs." 

Judgment  was  subsequently  entered,  in  accordance  with 
the  finding,  in  favor  of  the  defendant,  under  his  plea  of  set- 
off, for  $150,  and  costs  to  be  taxed.  Plaintiff  brings  the  case 
here  for  review. 

We  think,  under  the  findings  and  proofs  contained  in  th« 
record,  the  judgment  is  correct,  and  must  be  aflBrmed. 

There  seems  to  be  no  question  but  that  the  services  claimed 
for  were  in  procuring  the  defendant's  pension  in  1879.  This 
is  fully  established  by  the  findings  of  the  circuit  judge,  and 
the  plaintiff  admits  the  receipt  of  the  $150,  besides  the  tea 
dollars  which  he  claimed  was  for  the  agent  at  Washington. 

Under  the  laws  of  the  United  States,  ten  dollars  was  all  he 
was  entitled  to  recover,  and  anything  beyond  that  is  positively 
forbidden  by  the  statute.  A  charge  beyond  ten  dollars  is, 
under  the  law,  against  public  policy,  and  cannot  be  sustained: 
United  States  v.  Moyers,  15  Fed.  Rep.  411.  The  money  taken, 
beyond  the  amount  allowed  for  such  services,  by  the  agent, 
may  be  recovered  back  by  the  pensioner,  as  money  received 
for  his  use:  Smart  v.  White,  73  Me.  332;  40  Am.  Rep.  356.  It 
was  therefore  competent  for  the  defendant  to  recover  the 
amount  so  illegally  taken,  under  his  plea  of  set-off,  and  judg- 
ment was  properly  rendered  therefor. 

The  claim  of  plaintiff,  being  illegal  and  absolutely  forbid- 
den by  statute,  could  not  lawfully  be  made  the  subject  of 
arbitration,  as  claimed  by  plaintiff's  counsel,  between  the  par- 
ties, and  the  court  committed  no  error  in  ruling  out  the  testi- 
mony upon  that  subject;  and  for  the  same  reason  n»  error 
was  committed  in  disallowing  the  amendment  offered  by  plain- 

Am.  St.  K«p.,  Vot.  L— 87 


578  People  v.  Gadway.  [Micli. 

tiflf's  counsel  to  hia  bill  of  particulars  for  the  purpose  of  sup- 
porting the  testimony  relating  to  the  amount  awarded. 

The  federal  statute  is  a  beneficent  one,  intended  for  the  pro- 
tection of  the  soldier  and  his  family  from  unreasonable  and 
unjust  exactions  on  the  part  of  agents  who  assume  to  act  in  his 
interest  in  collecting  his  pension;  and  it  should  be  applied  in 
all  cases,  when  invoked,  in  such  manner  as  to  secure  the  ob- 
ject and  afford  the  protection  intended.  We  think  the  law 
applies  with  much  force  to  the  facts  disclosed  in  the  record, 
and  Judge  Hooker's  conclusion  in  the  matter  must  be  affirmed, 
with  costs  of  all  the  courts. 


Where  Agent  Takes  fbom  Pensioner  Fee  in  Excess  ov  Statutort 
Allowance  for  obtaining  hia  pension  money,  the  pensioner  may  recover  tho 
excess  from  him,  although  both  parties  acted  innocently,  and  the  agent  baa 
paid  the  amount  to  his  principal:  Smart  v.  WlUie,  40  Am.  Rep.  356.  And 
where  an  attorney  receives  the  statutory  fee  for  obtaining  a  pension,  he  can- 
not maintain  an  action  against  a  third  person,  by  whom  he  was  originally 
employed,  npon  his  agreement  to  pay  him  the  reasonable  value  of  hia  8er> 
vices:   WolaM  v.  Frissell,  45  Id.  272. 

Award  will  be  Set  Aside  where  Party  has  Knowingly  Presented 
Fictitious  Claim:  Emerson  v.  Udall,  37  Am.  Dec.  604;  Chambera  v.  Crook, 
94  Id.  637,  and  note  642. 

Pensions,  Exemption  op  from  Claims  op  CREDrroBS:  See  Friend  v.  Oar- 
eelon,  52  Am.  Rep.  739;  Hissem  v.  Johnson,  55  Id.  327;  Eobion  v.  Walker,  56 
Id.  878;  Cram  v.  White,  41  Id.  408. 


People  v.  Gadway. 

[61  MiCUlOAN,  285.1 

TSBMS  "to  Regulate"  and  "to  Prohibit"  are  not  Synonymous. 

Amendatory  Act  Which  is  Highly  Penal  in  its  Character  precludes 
a  liberal  construction  of  the  title  of  the  original  act,  such  as  would  ex- 
tend it  to  objects  not  within  the  meaning  of  the  language  employed. 

Constitutional  Law  —  Amendment  not  within  Title  op  Original  Act. 
—  An  act  entitled  "An  act  to  regulate  the  sale  of  spirituous  liquors," 
etc.,  was  amended  by  adding  a  new  section  prohibiting  absolutely  the 
sale  of  such  liquors  withia  certain  specified  limits.  Held,  that  the 
amendment  was  not  embraced  in  the  title  of  the  original  act,  and  there* 
fore  was  unconstitutional  and  void. 

Thomas  J.  Davis  and  Theo.  Hollister,  for  the  respondent. 
Moses  Taggart,  attorney-general,  for  the  people. 

By  Court,  Champlin,  J.  In  1881,  the  legislature,  by  act 
No.  259,  passed  a  bill  entitled  "An  act  to  regulate  the  sale  of 
spirituous,  malt,  brewed,  fermented,  and  vinous  liquors:  to 


April,  1886.]  People  v.  Gadway.  579 

prohibit  the  sale  of  such  liquors  to  minors,  intoxicated  per- 
sons, and  to  persons  in  the  habit  of  getting  intoxicated;  to 
provide  a  remedy  against  persons  selling  liquors  to  husbands 
or  children  in  certain  cases;  and  to  repeal  all  acts  or  parts  of 
acts  inconsistent  herewith." 

By  act  No.  178  of  the  Session  Laws  of  1883,  this  act  was 
amended  by  adding  thereto  a  new  section,  to  stand  as  section 
15  of  said  act.  The  title  to  the  amendatory  act  did  not  indi- 
cate the  object  or  purpose  of  the  amendment.  The  added 
section  reads  as  follows:  — 

"Sec.  15.  It  shall  not  be  lawful  for  any  person,  including 
druggists,  by  himself,  his  clerk,  agent,  or  servant,  directly  or 
indirectly,  to  sell,  or  offer  for  sale,  furnish  or  give,  any  spiritu- 
ous, malt,  brewed,  fermented,  or  vinous  liquors,  or  any  bev- 
erage, liquors,  or  liquids  containing  any  spirituous,  malt, 
brewed,  fermented,  or  vinous  liquors,  or  sufiFer  the  same  to  be 
done,  at  any  time,  within  a  radius  of  two  miles  from  the 
grounds  or  premises  of  the  Michigan  Military  Academy,  an 
institution  of  learning,  located  near  Orchard  Lake,  in  the 
county  of  Oakland,  in  this  state.  For  any  violation  of  any 
of  the  provisions  of  this  section,  the  person  so  offending  shall 
be  punished  by  a  fine  of  not  less  than  two  hundred  dollars, 
nor  more  than  five  hundred  dollars,  or  by  imprisonment  not 
exceeding  one  year,  in  the  discretion  of  the  court." 

At  the  December  term  of  the  circuit  court  for  the  county 
of  Oakland,  on  complaint  made,  the  prosecuting  attorney  of 
Oakland  County  filed  an  information  against  the  above- 
named  respondent,  charging  him  with  a  violation  of  section 
15  of  the  act  as  amended. 

Gadway  kept  a  hotel  within  three  fourths  of  a  mile  of  the 
grounds  of  the  Michigan  Military  Academy.  The  academy 
has  a  vacation  from  the  middle  of  June  till  September,  and  is 
not  run  during  the  vacation  as  an  educational  institution. 

On  the  26th  of  August,  1885,  the  supervisors  held  a  picnic 
at  Gadway's,  and  the  evidence  showed  that  he,  through  his 
agents  and  servants,  sold  beer  upon  that  occasion  to  difiFerent 
persons  named  in  the  information.  After  all  the  evidence  was 
introduced,  the  counsel  for  the  respondent  requested  the  court 
to  charge  the  jury  as  follows:  1.  The  statute  on  which  this 
information  is  based  is  unconstitutional  and  void;  2.  The 
ofifense  charged  is  not  an  offense  at  common  law,  and  not  an 
offense  under  the  general  statutes  of  this  state;  3.  The  jury 
must  acquit  the  prisoner. 


580  People  v.  Gadway.  [Mich. 

The  court  refused  each  of  the  above  requests,  and  under  his 
instructions  the  jury  returned  a  verdict  of  guilty. 

The  error  assigned  upon  the  refusal  of  the  court  to  grant  the 
first  request  is  all  that  need  be  considered;  for  if  the  statute 
is  not  in  conflict  with  the  provisions  of  the  constitution,  the 
conviction  must  stand.  It  is  claimed  by  counsel  for  respon- 
dent that  section  15  is  not  within  the  title  of  the  act,  to  which 
it  is  added  by  way  of  amendment. 

In  applying  the  constitutional  test  to  this  law,  it  must  be 
regarded  as  if  section  15  was  embraced  in  the  original  when 
passed;  and  if  it  is  embraced  in  the  title  of  the  act  of  1881,  it 
is  valid;  otherwise  not.  What  objects  are  expressed  in  the 
title  of  that  act?  They  are,  —  1.  To  regulate  the  sale  of 
spirituous,  malt,  brewed,  fermented,  and  vinous  liquors;  2. 
To  prohibit  the  sale  of  such  liquors  to  minors,  and  to  persons 
in  the  habit  of  getting  intoxicated;  3.  To  provide  a  remedy 
against  persons  selling  liquors  to  husbands  or  children  in  cer- 
tain cases;  4.  To  repeal  all  acts,  or  parts  of  acts,  inconsistent 
therewith. 

The  learned  attorney-general  insists  that  the  section  is  em- 
braced in  the  first  object  above  enumerated,  and  is  included 
in  the  expression,  "  to  regulate  the  sale  of  spirituous  liquors,*^ 
etc.,  because  the  construction  of  titles  to  acts  under  our  con- 
stitution covers  that  which  is  directly  or  indirectly  connected 
with  the  subject  named.  He  insists  that  "  the  legislature  had 
an  object  in  view,  and  if  by  law  enacted  to  accomplish  it 
others  are  affected,  it  would  not  invalidate  the  law.  It  was 
not  only  to  protect  the  school-boys  from  the  evils  of  intemper- 
ance, but  to  preserve  order  and  peace  within  the  vicinity  of 
the  school-grounds." 

If  such  was  the  object  of  the  legislature,  they  have  adopted 
a  measure  strangely  inapt  to  efiectuate  that  object.  It  is  in 
proof  that  the  grounds  or  premises  of  the  Michigan  Military 
Academy  comprise  about  one  hundred  acres  of  land.  Now, 
while  the  act  prohibits  absolutely  the  sale  or  gift  of  spirituous, 
fermented,  or  vinous  liquors  within  the  radius  of  two  miles 
from  the  premises,  it  nowhere  prohibits  the  sale  or  gift  of  such 
liquors  upon  the  premises  of  the  academy;  and  there  is  noth- 
ing in  the  law  which  prevents  the  township  board  of  the  town- 
ship in  which  the  premises  are  situated  from  licensing  any 
number  of  saloons  or  places  for  the  sale  of  such  liquors  upon 
the  premises  of  the  academy,  under  the  general  law. 

The  peculiar  characteristic  of  the   section   added  by  the 


April,  1886.J  Mathews  v.  Phelps.  581 

amendment  is  the  restricted  and  local  application  of  the  pro- 
hibition. It  segregates  from  the  general  territory  over  which 
the  body  of  the  act  extends  a  certain  circle  around  the  prem- 
ises of  the  military  academy,  and  in  that  circle  entirely  pro- 
hibits the  traffic.  In  all  other  parts  of  the  state  it  regulates; 
here  it  prohibits.  Unless  "  to  regulate  "  is  synonymous  with 
**  to  prohibit,"  the  fifteenth  section  does  not  fall  within  the  ob- 
ject embraced  in  the  title  of  the  act.  The  legislature  under- 
stood that  the  words  were  not  synonymous;  for  in  the  title  of 
the  act  it  expressed  one  object  to  be  to  prohibit,  not  regulate, 
the  sale  of  liquors  to  minors,  to  persons  intoxicated,  and  to 
persons  in  the  habit  of  getting  intoxicated;  and  had  it  in- 
tended originally  to  extend  the  prohibition  around  the  prem- 
ises of  the  militar}'  academy,  it  can  scarcely  be  doubted  that 
it  would  have  expressed  that  object  in  the  title  of  the  act. 

The  amendment  is  highly  penal,  and  precludes  a  liberal 
construction  of  the  title,  so  that  it  will  extend  to  objects  not 
within  the  meaning  of  the  language  employed. 

Section  15  of  the  act  as  amended  must  be  declared  uncon- 
stitutional and  void,  and  the  conviction  must  be  set  aside,  and 
the  prisoner  discharged. 

CONSTITCTIONAI.  LaW  —  PkOVISION  THAT  STATUTE  SHALL  EMBRACE  BUT  OSB 

Subject,  Which  shall  be  Expressed  ik  Title,  Object  and  Construction 
OF:  City  qf  St.  Paul  v.  Colter,  90  Am.  Dec.  278,  and  see  full  collectioa  of  cases 
in  note  284;  MUU  v.  Cltarleton,  9  Am.  Rep,  578;  Oiddinga  v.  City  qf  Antonia,  26 
Id.  321;  Neuendorffw.  Duryea,  25  Id.  235;  State  v.  Ah  Sam,  37  Id.  454;  Howell 
V.  StatCj  61  Id.  259;  Koi-t/iioeatem  Mfg.  Co.  v.  Wayne  Circuit  Judge,  65  Id. 
693. 

Statute  Prohibitiuo  Sale  of  Intoxicating  Liquors  outside  of  Incor- 
porated Cities,  Towns,  and  Villages,  but  Permitting  It  in  Those  Local- 
rrnca,  is  not  UNOONSTmrrioNAL:  State  v.  Berlin,  53  Am.  Rep.  677. 


Mathews  v.  Phelps. 

161  MlCBIOAN,  327.] 

Ik  Construing  Contract  of  Guarantt,  General  Rule  Arising  from 
Implication  of  Languaoe  Used  ls,  that  when  the  amount  of  the  lia- 
bility is  limited,  and  the  time  is  not,  the  contract  should  be  construed 
as  a  continuing  guaramty. 

In  All  Cases  Contract  should  be  so  Construed  as  to  Carry  into  Effect 
the  intention  of  the  parties,  and  such  intent  must  be  ascertained  from 
the  language  of  the  instrument,  and  the  facts  and  circumstances  attend- 
ing its  execution. 


582  Mathews  v.  Phelps.  [Mich. 

Admissions  of  Copabtnek  and  of  Joint  Oontractor  have  been  Held 
Admissible  in  Evidence  to  bind,  not  only  themselves,  but  their  co- 
defendants;  bat  whether  the  admissions  of  a  surety  are  proper  evidence 
to  bind  a  co-surety  is  a  question  undetermined  in  the  particular  case. 

Judgment  will  not  be  Reveesed  for  Ebbob  in  ADMimNG  Testimony 
that  could  not  by  any  possibility  have  operated  prejudicially  to  the  party 
defeated. 

Assumpsit.    The  facts  appear  in  the  opinion. 
James  H.  Pond,  for  the  defendants  and  appellants. 
George  F.  Beasley,  for  the  plaintiff. 

By  Court,  Champlin,  J.  Suit  was  brought  by  the  plaintiff 
against  the  defendants  before  a  justice  of  the  peace,  in  which 
the  plaintiff  declared  against  the  defendants  in  an  action  of 
assumpsit  upon  all  the  common  counts,  and  on  a  memorandum 
of  suretyship,  as  follows: — 

"  Detroit,  October  22,  1883. 

"It  is  hereby  mutually  agreed  that  William  E.  Moloney 
and  Ralph  Phelps,  Jr.,  is  to  become  the  surety  of  Charles  Sav- 
enac,  for  the  sale  of  cigars,  to  James  L.  Mathews,  to  the  extent 
of  two  hundred  dollars.  "  Ralph  Phelps,  Jr. 

"William  E.  Moloney." 

At  the  trial  in  the  circuit  court,  to  which  the  case  had  been 
appealed,  it  appeared  that  Mathews  was  a  manufacturer  of 
cigars  in  the  city  of  Detroit,  and  had  entered  into  an  arrange- 
ment with  Charles  Savenac  to  sell  cigars  for  him,  and  return 
the  money  to  Mathews,  for  which  Mathews  was  to  give  five 
dollars  a  thousand  "all  round,"  and  defendants  signed  the 
written  agreement  above  set  forth  for  the  purpose  of  becoming 
responsible  for  the  money  Savenac  did  not  return,  and  deliv- 
ered the  same  to  the  plaintiff,  who  thereupon  furnished  Sav- 
enac with  samples,  and  he  proceeded  to  sell  cigars  for  the 
plaintiff.  Under  these  facts,  the  court  construed  the  contract 
as  if  it  read  as  follows:  — 

"  Detroit,  October  22,  1883. 

"It  is  hereby  mutually  agreed  that  William  E.  Moloney 
and  Ralph  Phelps,  Jr.,  is  to  become  the  surety  of  Charles  Sav- 
enac to  James  L.  Mathews,  for  the  sale  of  cigars,  to  the  extent 
of  two  hundred  dollars." 

We  think  the  court  construed  the  contract  of  suretyship 
correctly,  in  the  light  of  the  surrounding  circumstances.  If 
construel  literally,  it  would  be  meaningless.  By  the  transpo- 
sition of  a  single  phrase,  the  intention  of  the  parties  is  ex- 
pressed in  clear  and  unambiguous  language. 


A-pril,  1886.]  Mathews  v.  Phelps.  583 

The  record  further  shows  that  Savenac  failed  to  return  to 
«,he  plaintiff  money  received  by  him  on  the  sale  of  cigars,  to 
«o  the  amount  of  $169.04.  It  also  appears  that  the  sales  made 
by  Savenac  for  the  plaintiff  amounted  to  more  than  one  thou- 
eand  dollars;  and  defendants'  counsel  contends  that  the  con- 
tract of  suretyship  did  not  extend  beyond  the  sale  of  two 
hundred  dollars'  worth  of  cigars,  and  was  not  continuous;  and 
plaintiff  having  received  returns  exceeding  two  hundred  dol- 
lars, the  defendants  are  not  liable  in  this  action.  This  would 
be  a  narrow  construction  to  place  upon  the  terms  of  the  con- 
tract. It  is  the  extent  of  the  liability,  and  not  the  extent  of 
the  sales,  that  is  limited  to  two  hundred  dollars. 

The  general  rule  arising  from  the  implication  of  the  lan- 
guage used  is,  that  when  the  amount  of  the  liability  is  limited, 
and  the  time  is  not,  the  contract  should  be  construed  as  a 
continuing  guaranty:  Gard  v.  Stevens,  12  Mich.  295;  86  Am, 
Dec.  52. 

In  all  cases,  the  contract  should  be  so  construed  as  to  carry 
into  effect  the  intention  of  the  parties;  and  such  intent  must 
be  ascertained  from  the  language  of  the  instrument,  and  the 
facts  and  circumstances  attending  the  execution  thereof. 

Viewing  the  contract  under  consideration  in  the  light  of  the 
circumstances  under  which  it  was  made,  it  is  plain  that  the 
j^uaranty  was  intended  to  continue  so  long  as  Savenac  should 
continue  to  sell  cigars  for  Mathews,  or  until  ended  by  notice 
from  the  sureties  that  they  would  not  continue  to  be  responsi- 
ble any  longer,  the  extent  of  their  liability  being  fixed  at  two 
hundred  dollars. 

The  court  permitted  plaintiff  to  testify  to  admissions  of  de- 
fendant Phelps  as  to  the  liability  of  defendants  upon  the  con- 
tract. This  the  counsel  for  defendants  insists  is  error,  for  the 
reason  that  admissions  made  by  Phelps  could  not  bind  his 
co-surety,  Moloney.  The  admissions  of  a  copartner  and  of  a 
joint  contractor  have  been  held  admissible  in  evidence  to  bind, 
not  only  themselves,  but  their  co-defendants;  but  whether  the 
admissions  of  a  surety  are  proper  evidence  to  bind  a  co-surety 
is  a  question  which  need  not  be  determined  in  this  case.  No 
testimony  was  introduced  on  behalf  of  defendants.  The  testi- 
mony of  the  plaintiff  made  out  a  case  under  which  he  was 
entitled  to  recover  without  the  admissions  as  to  liability  of 
defendant  Phelps.  The  error,  if  any  was  committed,  could  not 
by  any  possibility  have  prejudiced  the  defendants,  and  the 
judgment  will  not  be  reversed  for  that  reason. 


|>84  KiPLiNGEB  V.  Green.  [Mich. 

Perceiving  no  error  prejudicial  to  defendants,  the  judgment 
is  aflSrined. 


LsrrsBS  of  Ckedit  ah  GrARANTT:  Wlueeler  r.  MayfieJd,  98  Am.  Dec.  545, 
and  note  547;  Lafargut  v.  Harrison,  59  Am.  Rep.  416;  Boehne  v.  Murphy,  11 
Id.  485;  Central  Sav.  Bank  v.  Shine,  8  Id.  112. 

Contract  of  Guaeantt,  how  Construed:  Hotdddsa  v.  Barnes,  91  Am. 
Dec.  713;  Gales  v.  McKee,  64  Id.  545,  and  note  549;  Barns  v.  Barrow,  19 
Am.  Rep.  247. 

Continuing  Guaranty,  What  is  and  What  is  not:  Oard  v.  Stevens,  86 
Am.  Dec.  52,  and  note  53;  Tootle  v.  Elgutter,  45  Am.  Rep.  103;  Crittenden  v. 
Fislce,  41  Id.  146;  Ferryman  v.  McCall,  41  Id.  752;  Morgan  v.  Boyer,  48  Id. 
454;  Columbus  Sewer  Pipe  Co.  v.  Gamer,  55  Id.  697. 

Guaranty,  Consideration  of:  Evansville  Nat.  Bank  v.  Kaufman,  45  Am. 
Eep.  204;  Smith  v.  Boston,  39  Id.  355;  Mecluimcs'  Nat.  Bank  v.  Frazer,  29  Id. 
20;  Draper  v.  Snow,  75  Am.  Dec.  408,  and  note  413. 

Dbolabations  of  Pabtnsr  against  Copabtneb,  Ck>MPSTXNor  owt  OoAran 
V.  Cunningham,  50  Am.  Dec.  186;  FickeU  v.  Sm/l,  66  Id.  214. 

Admissions  of  Partner,  Made  while  Engaged  in  Adjustment  of 
Unsettled  Partnership  Business,  after  Dissolution  of  Firm,  may  be 
given  in  evidence  to  charge  the  other  partners  in  relation  to  snch  business: 
Fdgley  v.  Whitaker,  10  Am.  Rep.  778. 


KiPLiNGER  V.  Green. 

|61  michioan,  340.] 

Tenant  vtshzbl  Chopping  Lease  Deprives  Himself  of  All  Ciaim  to 
Crop  which  he  has  planted,  where,  without  fault  on  the  part  of  the 
landlord,  he  repudiates  the  agreement,  and  voluntarily  abandons  the 
premises.  In  such  case,  the  crop  becomes  a  part  of  the  land,  and  goes 
with  it. 

Doctrine  of  Emblements  does  not  Apply  where  the  term  of  occupancy 
of  leased  premises  is  certain  under  the  contract,  and  is  not  determined 
by  the  act  of  the  lessor,  nor  by  any  other  cause  than  the  violation  by 
the  lessee  of  the  agreement  under  which  he  holds. 

Replevin.    The  opinion  states  the  case. 

Van  Zile  and  Fox,  for  the  plaintiff  and  appellant. 

Huggett  and  Smith,  for  the  defendant. 

By  Court,  Morse,  J.  The  plaintiff  in  this  action,  on  the 
fifteenth  day  of  September,  1883,  entered  into  the  following 
agreement  with  the  defendant:  — 

"  This  agreement,  made  and  entered  into  this  fifteenth  day 
of  September,  1883,  between  Alonzo  Green,  of  the  city  of  Char- 
lotte, county  of  Eaton,  and  state  of  Michigan,  of  the  first  part, 


I 


April,  1886.]  Kiplingkr  v.  Green.  585 

and  Jonas  Kiplinger,  of  the  second  part,  witnesseth:  that  said 
eecond  party  hereby  agrees  to  move  onto  and  cultivate  and 
farm  the  said  first  party's  farm,  where  he  now  resides,  lying 
in  the  town  of  Eaton,  and  city  of  Charlotte,  in  said  county,  for 
the  term  of  five  years  and  five  months  from  the  first  day  of 
November,  1883,  on  the  following  terms,  viz.:  — 

"  Said  second  party  is  to  do,  or  cause  to  be  done,  all  the 
work,  furnish  all  the  teams  and  implements  necessary  in  so 
farming  the  premises,  and  is  to  furnish  one  half  of  all  the 
seed  to  be  sowed  or  planted;  and  deliver  one  half  of  all  grain 
raised  on  said  farm  to  said  first  party,  in  the  granary  on  said 
farm,  and  one  half  of  the  potatoes  and  vegetables  that  shall 
be  raised,  after  they  are  dug,  on  said  farm,  as  said  first  party 
may  direct. 

"  Said  first  party  is  to  furnish  one  half  of  the  seed  for  all 
euch  crops. 

"  Said  first  party  is  also  to  have  one  half  of  all  the  hay, 
etraw,  and  corn-stalks,  after  they  are  properly  cut  and  secured 
by  said  second  party  as  the  first  party  may  direct.  Each 
party  is  to  have  one  half  of  the  apples,  and  pick  or  gather  the 
Bame.  Said  first  party  is  to  have  all  the  cherries  and  grapes 
he  wishes  that  may  grow  on  said  farm. 

"  Each  party  is  to  have  one  half  of  the  pasture,  also  to  fur- 
nish an  equal  amount  of  poultry,  and  share  equally  in  it8 
products. 

"  Said  second  party  is  to  have  a  good  garden,  and  divide  the 
same  as  the  other  products  of  the  farm. 

"  Said  second  party  is  to  pay  all  the  highway  taxes  on  said 
farm,  and  is  to  keep  in  repair  all  the  fences,  and  make  such 
new  fences  as  may  be  necessary  on  said  farm,  said  first  party 
furnishing  the  materials  to  repair  and  make  the  same;  also 
to  keep  in  repair  all  buildings  occupied  by  him,  and  the  wind- 
mill on  said  farm;  and  to  have  the  use  of  all  the  dwelling- 
bouse  on  said  farm,  except  the  chambers,  hall,  and  parlor  of 
the  upright  brick  house,  which  shall  be  exclusively  said  first 
party's;  also  such  portions  of  the  cellar  as  he  may  delbire  to 
use. 

"  Said  second  party  is  also  to  use  what  barn  room,  stabling, 
and  granary  that  is  necessary  to  accommodate  his  farming 
work.  All  horses  and  other  stock  belonging  wholly  to  said 
Becond  party  is  to  be  fed  from  said  second  party's  share  of  the 
products  of  said  farm,  or  that  which  he  may  purchase. 

"All  sheep  or  other  stock  or  poultry  owned  by  both  parties 


586  KiPLiNGER  V.  Green.  [Mich. 

shall  be  taken  care  of  by  said  second  party,  and  fed  from  the 
products  belonging  to  both  parties. 

"  Said  second  party  is  to  milk  the  cow  or  cows  of  said  first 
party,  and  let  him  have  all  the  milk  he  wants  to  use  for  his 
family,  and  the  rest  to  make  into  butter  for  said  first  party's 
family  use. 

"  Said  second  party  is  to  have  all  the  fire-wood  necessary 
for  his  use,  from  said  farm,  and  from  the  eighty  acres  in  the 
town  of  Carmel  belonging  to  said  first  party,  as  he,  said  first 
party,  may  direct.  Such  pieces  of  land  as  are  now  let  on  said 
farm  to  other  persons  are  excepted  until  their  lease  expires, 
and  then  said  second  party  is  to  farm  such  pieces. 

"  Said  second  party  is  to  feed  and  care  for  the  undivided 
sheep  and  cows  of  said  first  party,  the  coming  winter,  from 
the  hay  and  other  feed  owned  by  said  first  party. 

"  It  is  expressly  understood  and  agreed  that  said  first  party  is 
to  remain  in  full  possession  and  have  full  control  of  said  farm, 
and  all  that  pertains  to  it,  and  have  full  directions  as  to  how 
all  and  what  crops  shall  be  raised  on  it  by  said  second  party. 
All  of  said  farming  shall  be  done  in  a  good,  thorough,  work- 
man-like manner  by  said  second  party.  Upon  the  non-per- 
formance of  any  of  the  above  specifications,  this  agreement 
shall  immediately  become  null  and  void.  Both  of  said  parties 
hereby  agree  to  all  of  the  above-mentioned  specifications. 

"Alonzo  Green. 
"Jonas  Kiplingee." 

Under  this  agreement  the  plaintifi"  moved  upon  the  farm 
about  the  twenty-third  day  of  October,  1883,  and  the  following 
summer  put  in  a  crop  of  wheat. 

In  September,  1884,  he  served  the  following  notice  upon  the 

defendant:  — 

"  Charlotte,  Mich.,  September  30, 1884. 

"Mr.  Alonzo  Green,  Esq., — Dear  Sir:  You  are  hereby 
notified  and  duly  informed  that  I  shall  vacate  the  premises 
and  farm  on  which  I  now  reside,  the  same  belonging  to  you, 
on  the  first  day  of  April,  A.  D.  1885,  for  the  following  reasons:  — 

"  1.  Owing  to  the  unreasonableness  of  the  contract  framed 
by  you,  which  I  now  find,  and  am  aware,  is  contrary  to  all 
farming  customs  of  the  county  and  vicinity. 

"  2.  On  account  of  the  deception  and  fraud  practiced  by  you 
in  framing  said  contract,  material  parts  of  which  you  failed  to 
read  to  me,  and  which  I  was  not  aware  it  contained. 

"Yours,  Jonas  Kiplinger." 


April,  1886.]  Kiplingeb  v.  Green.  587 

— And  moved  off  from  the  premises  the  second  day  of  April, 
1885.  He  testified  that  after  the  service  of  the  notice  he  spoke 
to  the  defendant  once,  and  told  him  that  if  he  would  give  him 
a  better  chance  than  he  had  under  the  contract  he  would  stay 
on,  but  gave  him  to  understand  that  he  would  not  stay  there 
unless  better  terms  were  given  him. 

The  defendant  let  a  portion  of  the  premises  to  another 
tenant,  who  moved  upon  the  same  the  day  before  the  plaintiff 
left.  The  plaintiff  testified,  however,  that  he  left  the  place  in 
pursuance  of  the  intention  manifested  in  his  notice,  and  be- 
cause he  found  he  could  not  stand  the  bargain  contained  in 
the  contract. 

The  plaintiff  undertook  to  harvest  the  wheat  put  in  by  him 
the  summer  before,  but  was  prevented  from  doing  so  by  the 
defendant,  who  gathered  the  same.  He  made  a  written  de- 
mand upon  the  defendant  for  it,  and  brought  replevin. 

Upon  the  conclusion  of  the  plaintiff's  case,  showing  these 
facts,  the  counsel  for  the  defendant,  upon  the  trial,  moved  to 
strike  out  the  evidence  introduced  in  plaintiff's  behalf  as 
insufficient  to  warrant  a  recovery,  which  the  court  did,  and 
thereupon  directed  the  jury  to  find  a  verdict  for  defendant. 

The  plaintiff's  counsel  contend  that  this  was  error,  and 
that  upon  the  facts  shown,  the  plaintiff  was  entitled  to  recover 
for  one  half  the  wheat;  that  the  agreement  between  the  parties 
was  not  a  lease,  but  a  contract  to  crop  the  land  on  shares;  that 
the  relation  of  landlord  and  tenant  did  not  exist;  that  the 
parties  were  tenants  in  common  in  the  wheat;  and  by  the 
action  of  the  defendant  in  cutting  and  thrashing  the  same,  and 
refusing  to  account  for  any  of  it  to  plaintiff,  he  was  guilty  of  a 
conversion  of  plaintiff's  share,  for  which  plaintiff  was  entitled 
to  bring  replevin.  They  insist  that  the  abandonment  of  the 
coutract  and  the  farm  cuts  no  figure  in  the  case,  as  plaintiff's 
interest  in  the  crop  vested  as  soon  as  the  same  was  sown;  that 
it  became  personal  property,  and  he  might  have  sold  his  share 
before  he  left  the  place,  and  the  purchaser  obtained  a  valid 
title  thereto. 

We  find  no  error  in  the  action  of  the  circuit  court. 

It  can  make  no  difference  in  tue  law  applicable  to  the  facts 
in  this  case  what  was  the  particular  name  or  nature  of  the 
plaintiff's  holding  under  this  agreement.  His  rights  must  be 
gathered  from  the  contract,  and  considered  in  relation  to  its 
terms. 

Whether  it  be  called  a  lease  or  a  mere  cropping  agreement. 


^SS  KiPLiNGER  V.  Green.  [Mich. 

its  construction  and  its  effect,  as  far  as  the  plaintiff's  claim  to 
this  crop  of  wheat  is  concerned,  must  be  the  same.  He  went 
upon  the  farm  and  put  in  the  wheat  under  and  by  virtue  of 
this  instrument,  and  whatever  rights  he  can  legally  claim 
must  accrue  from  and  rest  upon  its  provisions;  and  his  counsel, 
upon  the  trial  in  the  court  below,  expressly  stated  that  he 
based  his  right  to  recover  upon  the  contract,  and  his  acts 
under  it. 

When  he  voluntarily  abandoned  the  farm,  and  forfeited  the 
contract  under  his  notice,  he  could  no  longer  claim  any  rights 
under  it. 

He  admits  that,  after  serving  the  notice,  he  did  nothing 
upon  the  farm  except  to  care  for  the  stock  upon  it. 

There  is  no  theory  of  the  law  under  which  the  plaintiff 
could  recover  one  half  of  this  crop  under  a  contract  which 
he  had,  upon  his  own  motion,  repudiated.  If  so,  he  might 
have  abandoned  the  farm  and  thrown  up  the  contract  the  next 
day  after  the  wheat  was  sown,  and  held  his  share.  If,  before 
his  surrender  of  the  agreement  and  the  possession  of  the  farm 
under  it,  he  had  sold  his  share  of  the  crop  to  another,  pur- 
chasing in  good  faith,  such  assignee  of  his  interest  would  have 
been  entitled  to  reap  and  harvest  the  wheat  under  this  agree- 
ment, because  of  equities  which  the  plaintiff  cannot  assert 
after  his  rescission  of  the  contract,  the  crop  being  considered 
while  the  agreement  is  in  force  as  personal  property,  subject 
to  sale  or  levy  as  such. 

But  when  the  plaintiff  abandoned  the  premises  and  surren- 
dered the  contract,  the  wheat  became  a  part  of  the  land  and 
went  with  it:  Chandler  v.  Thurston,  10  Pick.  205;  Carpenter  v. 
Jones,  63  111.  517. 

The  doctrine  of  emblements  does  not  apply.  The  term  of 
the  plaintiff's  occupancy  of  the  premises  was  certain  and  defi- 
nite under  the  contract.  It  was  not  determined  by  the  act  of 
the  defendant,  nor  by  any  other  cause  than  the  -saolation  by 
the  plaintiff  of  the  agreement  under  which  he  held.  He  can- 
not profit  by  his  own  wrong. 

The  judgment  of  the  court  below  as  aflfirmed,  with  costs. 


Emblements,  Bight  of  Tenant  foe  Life  to:  Milea  v.  Miles,  64  Am. 
Dec.  362,  and  note  369. 

Landlord  and  Tenant  —  Octgoino  Crops:  See  Reeder  v.  Sayre,  26  Am. 
Eep.  667,  and  note;  Henderson  v.  CordttxU,  40  Id.  93,  and  note  96. 


April,  1886.]  McCoy  v.  Brennan.  589 

Tenant  under  Farming  Lease  cannot  Removb  Manure  Made  on 
Demised  Premises  in  Ordinary  Course  of  Husbandry:  Gallagher  y.  6'Aip- 
fey,  87  Am.  Dec.  611,  and  note  615;  Chase  v.  Wingate,  28  Am,  Rep.  36. 

As  between  Purchaser  of  Land  on  Foreclosure  Sale  and  Mort- 
oaoor's  Tenant,  crops  planted  by  the  latter  and  matoire  when  the  sheriffa 
deed  is  executed,  although  not  severed,  do  not  pass  by  the  sale:  Hechi  v. 
JkUman,  41  Am.  Rep.  13L 


McCoy  v,  Brennan. 

[61  MICBIOAN,  862.] 

Sals  by  Sheritf  ot  Property  Levied  upon  in  Which  Exemption  la 
Claimed,  Made  in  Violation  of  Claimant's  Statutory  Rights,  is  a 
conversion,  respecting  which  he  may  be  regarded  as  a  tort-feasor  from 
the  beginning,  and  he  may  be  regarded  as  having  received  goods  con- 
trary to  the  provisions  of  the  statute  exempting  property  from  sale  on 
execution. 

Ih  Pleading  Exemption  under  Statute,  Facts  Which  Show  the  prop- 
erty to  be  exempt  should  be  clearly  set  forth;  but  an  objection  on  that 
ground  after  all  the  proof  has  been  admitted  comes  too  late,  and  an 
amendment  should  be  permitted  to  remedy  the  defect. 

Each  Member  of  Firm  against  Which  Execution  is  Levied  may  Cladc 
Statutory  Exemption  from  such  process,  and  the  right  of  a  partner  to 
make  such  claim  is  not  fiffected  by  the  fact  that  he  has  drawn  more  than 
his  share  out  of  the  firm  assets.  This  question  can  only  be  reached  by 
proceedings  in  equity  upon  an  accounting  and  winding  up  of  the  part- 
nership. 

It  is  not  Necessary  that  Partner  should  be  Active  Member  of  Firm 
to  Entitle  him  to  his  statutory  exemption.  A  married  woman  who  is 
a  member  of  a  firm,  though  residing  with  her  husband  a  long  distance 
from  the  place  of  business  of  the  firm,  and  mainly  occupied  in  house- 
keeping, is  nevertheless  entitled  to  claim  her  statutory  exemption  in  tho 
firm  property. 

Statutory  Right  of  Exemption  is  Individual  Right,  which  one  partner 
may  enforce  in  a  separate  suit  as  an  individual. 

Trover.     The  opinion  states  the  case. 

T.  A.  E.  and  J.  C.  Weadock,  for  the  plaintiff  and  appellant. 

Shepard  and  Lyon,  for  the  defendant. 

By  Court,  Champlin,  J.  As  sheriflF  of  Bay  County,  defend- 
tnt  levied  upon  a  stock  of  goods  belonging  to  the  firm  of  E. 
McCoy  &  Co.,  composed  of  the  plaintiff,  Elizabeth  McCoy, 
and  her  two  sons,  William  and  Robert  McCoy. 

Elizabeth  was  a  married  woman,  and  resided  with  her  hus- 
band in  West  Bay  City. 

The  business  of  the  firm  was  carried  on  at  Pinconning, 
about  twenty  miles  from  the  place  where  plaintiff  resided. 


590  McCoy  v.  Brenxan.  [Mich. 

by  the  other  two  members  of  the  firm.  The  partnership  was 
formed  in  February,  1884.  The  plaintiff  was  a  general  part- 
ner, and  prior  to  the  levy  she  had  drawn  from  the  assets  of 
the  firm,  from  time  to  time,  in  money,  one  thousand  dollars, 
to  pay  upon  a  mortgage  upon  the  homestead  where  she  re- 
sided. This  sum  was  more  than  she  had  ever  invested  in  the 
business. 

She  visited  Pinconning  for  the  purpose  of  looking  after  the 
business  about  once  in  two  weeks,  or  oftener,  and  when  Wil- 
liam and  Robert  McCoy,  who  were  in  the  active  management 
of  the  business,  came  down  to  Bay  City  to  buy  goods,  they 
would  report  to  her  the  condition  of  the  business,  and  advise 
with  her  as  to  its  management.  She  was  engaged  in  no  other 
business,  and  had  no  interest  in  any  other  business,  than  this 
grocery  firm  at  Pinconning.  While  the  firm  was  doing  busi- 
ness, she  was  at  home  engaged  in  the  ordinary  business  of 
housekeeping,  occupying  a  house  with  her  husband,  attending 
and  having  charge  of  the  details  of  her  housekeeping  as  her 
principal  occupation.  She  never  took  an  active  part,  or  any 
part  whatever,  in  the  management  of  the  business  at  Pincon- 
ning. 

At  the  time  the  levy  was  made,  the  partners,  William  and 
Robert  McCoy,  claimed  their  exemption  of  $250  worth  each  of 
the  goods,  which  exemption  was  set  apart  and  delivered  to 
them.  The  plaintifi"  also  claimed  $250  worth  of  the  stock  in 
trade  as  exempt,  and  demanded  that  the  same  be  set  aside  to 
her,  which  demand  was  refused  by  the  sherifi",  who  afterwards 
Bold  and  disposed  of  the  property;  whereupon  she  brought 
this  action  of  trover  against  the  sheriff,  and  in  her  declaration 
counted  for  a  conversion  in  the  common-law  form  of  that 
action,  and  made  no  reference  to  the  statute  providing  for  ex- 
emptions. 

The  defendant  pleaded  the  general  issue,  and  attached 
thereto  a  justification  under  the  writ  of  attachment  under 
which  he  levied.  The  court  charged  the  jury  that,  upon 
the  above  facts,  which  were  agreed  upon,  under  the  decla- 
ration, the  plaintiff  could  not  recover.  Plaintiff  brings  error, 
and  presents  two  questions  for  our  consideration:  1.  Was  the 
declaration  sufficient?  2.  Was  the  plaintiff  entitled  to  re- 
cover ? 

Howell's  Statutes,  section  7343,  provides:  "If  an  action  of 
trover  be  brought  for  any  goods,  or  other  things  received  con- 
trary to  the  provisions  of  any  statute,  the  plaintiff  shall  set 


April,  1886.]  McCoy  v.  Brennan.  591 

forth  in  his  declaration  that  such  goods,  or  other  tilings,  were 
converted  by  the  defendant  contrary  to  the  provisions  of  such 
statute,  referring  to  the  same,  as  prescribed  in  the  preceding 
sections." 

The  seizure  by  the  sheriff  was  unlawful.  If  a  portion  of 
the  property  was  exempt,  it  was  the  duty  of  the  plaintiff, 
upon  being  notified  of  the  levy,  to  select  her  exemption,  and 
if  she  failed  to  do  so,  it  became  the  duty  of  the  sheriff  to 
make  the  selection  for  her,  and  it  would  be  a  violation  of  hia 
duty  to  proceed  to  a  sale  without  setting  out  the  exempt  prop- 
erty. These  duties  are  pointed  out  by  the  statute.  It  is  the 
statute  which  gives  the  exemption,  and  points  out  the  duty 
concerning  it. 

A  sale  by  the  sheriff  contrary  to  the  statute,  or  without  ob- 
serving its  pro\asion8  for  the  protection  of  the  debtor's  exemp- 
tion, is  a  conversion,  respecting  which  he  may  be  regarded  as 
a  tort-feasor  from  the  beginning,  and  he  may  be  regarded  as 
having  received  goods  contrary  to  the  provisions  of  the  statute 
exempting  property  from  sale  on  execution. 

Had  the  exemption  consisted  of  property  exempt  from  exe- 
cution eo  nomine,  it  would  be  clear  that  he  received  the  goods 
contrary  to  the  provisions  of  the  statute;  and  as  the  exemp- 
tion exists  solely  by  statute,  in  suing  the  oflBcer  it  would  be 
necessary  to  count  upon  the  statute  in  the  declaration,  in 
order  to  admit  proof  to  show  it  was  exempt  from  execution. 
So,  in  this  case,  the  plaintiff  should  have  declared  specially, 
setting  forth  the  facts  which  showed  the  property  exempt,  and 
that  the  property  was  converted  contrary  to  the  provisions  of 
the  statute  giving  her  the  exemption,  referring  to  the  same. 

But  as  the  proof  was  all  admitted  before  the  objection  was 
made,  we  think  it  came  too  late,  and  an  amendment  should 
have  been  and  will  now  be  permitted  in  that  respect. 

The  more  serious  question  is,  whether  the  plaintiff  was  en- 
titled to  an  exemption  of  $250  from  the  stock  in  trade  of  the 
partnership  property.  It  is  a  settled  question  in  this  state 
that  each  member  of  a  firm  against  which  execution  is  levied 
may  claim  the  statutory  exemption  from  execution:  Skinner 
V.  Shannon,  44  Mich.  86;  38  Am.  Rep.  232;  Waite  v.  MathewSy 
50  Id.  393. 

The  only  reasons  urged  why  the  plaintiff  is  not  entitled  to 
the  benefits  of  the  statute  are,  —  1.  That  she  has  drawn  from 
the  firm  one  thousand  dollars,  which  she  has  applied  to  her 


592  McCoy  v.  Brennan.  [Mich. 

individual  use;  2.  That  she  was  principally  engaged  in  the 
occupation  of  housekeeping,  and  the  statute  only  allows  an 
exemption  in  the  business  in  which  the  debtor  is  wholly  or 
principally  engaged. 

The  first  objection  cannot  be  raised  by  the  defendant.  The 
partnership  dealings  and  adjustment  between  the  partners,  or 
between  the  partners  and  creditors,  cannot  be  inquired  into  in 
this  collateral  proceeding,  nor  does  the  exemption  depend  upon 
whether  one  partner  has  drawn  out  more  than  his  share.  This 
question  can  only  be  reached  by  proceedings  in  equity,  upon 
an  accounting  and  winding  up  of  the  concern. 

The  second  reason  stated  is  not  suflBcient  to  bar  a  recovery. 
The  occupation  or  business  referred  to  in  the  statute  in  which 
a  party  may  be  engaged  is  not  that  of  housekeeping.  What 
property  would  be  exempt  to  a  person  engaged  in  carrying  on 
the  ordinary  duties  of  housekeeping? 

The  record  shows  that  the  business  of  this  firm — that  is, 
merchandising — was  the  principal  business  in  which  she  was 
engaged,  and  that  she  had  no  other.  I  do  not  think  it  is 
necessary  that  a  partner  should  be  an  active  member  of  the 
firm  in  order  to  be  entitled  to  his  exemption.  He  may  be  ab- 
sent; he  may  be  unable  to  give  his  personal  attention  through 
illness  or  inability  to  render  assistance.  The  law  has  made 
no  distinction  between  the  active  and  passive  members  of  a 
firm.  That  each  should  be  entitled  to  his  exemption,  works 
no  harm  or  hardship  to  creditors.  Every  one  dealing  with  a 
firm  has  a  right  to  know,  and  is  supposed  to  inquire,  who  com- 
pose the  firm.  Creditors  give  credit  to  the  firm  knowing  that 
each  partner  is  entitled  to  an  exemption  in  a  mercantile  firm, 
and  rate  them  accordingly. 

Defendant  also  claims  that  the  plaintifi"  cannot  maintain  a 
separate  action  for  her  exemption,  but  that  all  the  other  mem- 
bers are  interested  in  the  property  as  firm  property,  and  must 
be  joined  as  plaintiflfe  in  the  action.  But  the  right  of  exemp- 
tion is  an  individual  right,  and  not  a  right  of  the  firm  as  such. 
This  right  conferred  by  statute  upon  the  individual  is  the  basis 
of  the  determination  that  each  partner  is  entitled  to  his  ex- 
emption out  of  the  firm  property.  If  his  right  is  individual, 
he  can  enforce  it  separately,  and  as  an  individual*  Newton  v. 
Howe,  29  Wis.  531;  9  Am.  Rep.  616;  Russell  v.  Lennon,  39  Id. 
570;  20  Am.  Rep.  60. 

The  judgment  must  be  reversed,  and  a  new  trial  granted. 


April,  1886.]  McCoy  v.  Brennan.  593 

Execution,  how  Levied,  and  Effect  of  Defendant's  Failttre  to 
ExERCHB  Right  of  Selection:  People  v.  Palmer,  95  Am.  Dec  418,  and  ex- 
tended note  423. 

Execution  Sale,  when  Sheriff  Regarded  as  Trespasser  ab  Initio: 
Hall  V.  Pay,  94  Am.  Dec.  440,  and  note  444. 

Partners  are  Entitled  to  Claim  Benefit  of  Exemption  Law  as  to 
partnership  property:  Stetoart  v.  Brmon,  93  Am.  Dec.  578,  and  note  579; 
Skinner  v.  Shannon,  38  Am.  Rep.  232;  Blancliard  v.  Paschal,  45  Id.  474;  Pus- 
sell  V.  Lennon,  20  Id.  60;  contra:  Gaylord  v.  Imhoff,  20  Id.  762;  WJiUe  v. 
Hefner,  31  Id.  238;  Spiro  v.  Paxton,  31  Id.  630;  Wise  v.  Frey,  29  Id.  380; 
Giovanni  v.  First  Kat.  Bank,  28  Id.  723;  State  v.  Spencer,  27  Id.  244. 

One  Partner,  by  Consent  of  his  Copartners,  may  have  Separate 
Exemption  out  of  partnership  property  seized  on  execution  against  the  firm: 
O^Oorman  v.  Fink,  46  Am.  Rep.  58. 

Exemption  from  Execution  of  Property  op  Partners  and  Co-ten- 
ants, Including  Both  Personal  and  Homestead  Exemptions.  —  Whether 
partners  can,  during  the  existence  of  the  partnership,  claim  an  individual 
exemption  in  the  partnership  property,  when  taken  under  legal  process  for 
partnership  debts,  is  a  question  upon  which  there  is  a  conflict  of  judicial 
opinion,  and  the  cases  are  irreconcilable.  The  question  is  settled  affirmatively 
in  Michigan,  according  to  the  ruling  in  the  principal  case:  See  also  Chipman 
V.  Kellogg,  60  Mich.  438;  and  the  same  view  is  entertained  by  the  courts  in 
some  of  the  ottier  states.  It  is  held  that  the  exemption  act  should  receive  a 
liberal  construction,  in  harmony  with  its  humane  and  remedial  purpose,  and 
that  its  provisions  extend  to  property  owned  by  the  debtor  as  a  member  of 
a  copartnership:  Stewart  v.  Brovm,  37  N.  Y.  350;  93  Am.  Dec.  578;  Blan- 
chard  v.  Paschal,  68  Ga.  32;  45  Am.  Rep.  474.  Personal  property  which  is 
exempt  from  forced  sale  on  execution  is  none  the  less  exempt  because  the 
judgment  debtor  owns  an  undivided  interest  in  it  in  common  with  a  stranger 
to  the  judgment:  Servanti  v.  Luak,  43  Cal.  238.  And  the  decisions  are  nu- 
merous in  support  of  the  doctrine  that  one  partner,  by  consent  of  his  copart- 
ners, is  entitled  to  have  a  personal  property  exemption  allotted  to  him  out 
of  the  partnership  property  before  the  partnership  debts  are  paid:  See  O'Gor- 
man  v.  Fink,  57  Wis.  649;  46  Am.  Rep.  58;  Bums  v.  HaiTis,  67  N.  C.  140; 
TilVs  Case,  3  Neb.  261;  Allen  v.  Grissom,  90  N.  C.  90;  and  it  is  held  to  be 
immaterial  that  he  has  individual  property  sufiBcient  to  make  up  the  exemp- 
tion: Scott  V.  Kenan,  94  Id.  296.  But  although,  in  proper  cases,  each  member 
of  a  partnership  is  entitled  to  his  separate  exemption  out  of  the  partner- 
ship property,  yet  the  partnership  as  such,  or  the  partners  jointly,  can  claim 
no  exemption:  Russell  v.  Lennon,  39  Wis.  570;  20  Am.  Rep.  60;  overruling 
Oilman  v.  WiUiama,  7  Wis.  329;  76  Am.  Dec.  219;  McNair  v.  Rawey,  62  Wia. 
167.  But  one  partner  may  acquire  title  to  the  partnership  property  by  a 
purchase  in  good  faith  from  the  copartnership,  and  if  the  property  purchased 
is  such  as  is  exempt  under  the  statutes,  he  may  hold  it  as  against  creditors 
of  the  copartnership:  Burton  v.  Baum,  32  Kan.  641;  Levy  v.  Williams,  79 
Ala.  171;  Mortley  v.  Flanagan,  38  Ohio  St  401.  Partnership  property  of  a 
firm  which  ia  insolvent  cannot,  however,  be  divided  among  the  partners  and 
then  claimed  under  the  exemption  laws,  so  as  to  defeat  the  partnership  cred- 
itor: Gill  V.  Lattimore,  9  Lea,  381 ;  Re  Santlioff,  8  Bisa.  35. 

In  opposition  to  the  doctrine  of  the  principal  case,  and  to  that  of  many  of 
the  other  cases  above  cited,  the  great  weight  of  authority  seems  to  favor  the 
rule  that  partners  cannot,  during  the  continuance  of  the  partnership,  claim 
▲m.  St.  Rip.,  Vou  I.  —  S8 


594  McCoy  v.  Beennan.  [Mich. 

an  indiTidnal  exemption  in  tlie  partnership  property;  nor  are  partnerships, 
as  such,  entitled  to  any  rights  of  exemption  as  against  patinership  creditors: 
Oiovani  v.  FirBt  Nat.  Bank,  55  Ala.  305;  28  Am.  Rep.  723;  overruling  51 
Ala.  176;  Bonaail  v.  Comly,  44  Pa.  St  442;  Baker  v.  Slieelian,  29  Minn.  235; 
Proaaer  v.  Hartley,  35  Id.  340;  State  v.  Spencer,  64  Mo.  355;  27  Am.  Rep. 
244;  Wise  v.  Frey,  7  Neb.  134;  29  Am  Rep.  380;  Gaylord  v.  ImJioff,  26 
Ohio  St.  317;  20  Am.  Rep.  762;  White  v.  Hefner,  30  La.  Ann.  1280; 
31  Am.  Rep.  238;  In  re  Handlin,  3  Dill.  290;  Pond  v.  Kimball,  101  Mass. 
105;  Guptil  V.  McFe,  9  Kan.  30;  State  v.  Bowden,  18  Fla.  17;  Richardson 
V.  Adler,  46  Ark.  43;  and  the  rule  is  said  to  rest  upon  the  principle,  well 
recognized  in  the  decisions,  that  the  title  and  ownership  of  partnership 
property  is  in  the  partnership,  and  neither  partner  has  any  exclusive  right 
to  any  part  thereof:  Id.;  Levy  v.  WiUiama,  79  Ala.  171;  State  v.  Emmons, 
99  Ind.  452;  Ex  parte  HopJdns,  104  Id.  157.  So  it  is  held  that  one  part- 
ner cannot,  either  as  against  the  creditors  of  the  firm,  or  as  against  hia 
copartners,  acquire  a  homestead  right  in  real  estate  belonging  to  the  firm: 
Drake  v.  Moore,  66  Iowa,  58;  Hoyt  v.  Hoyt,  69  Id.  174;  and  the  right  of 
homestead  is  denied  upon  the  ground  that  the  property  must  primarily  be 
devoted  to  the  payment  of  partnership  liabilities,  and  that  a  partner  has  no 
interest  in  the  property  upon  which  a  homestead  can  be  based  until  the 
partnership  debts  are  paid:  Trowbridge  v.  Cross,  117  lU.  109;  Robertsliaw  v. 
Hanway,  52  Miss.  713;  and  see  Heivilt  v.  RanUn,  41  Iowa,  35,  44;  Terry  v. 
Berry,  13  Nev.  514;  Kingsley  v.  Kingsley,  39  Cal.  660;  Chalfant  v.  Grant,  3 
Lea,  118;  AmphleU  v.  Hibbard,  29  Mich.  298.  And  it  is  said  of  the  Call- 
fomia  statute  that  it  "  did  not  contemplate  that  homesteads  should  be  carved 
out  of  land  held  in  joint  tenancy,  or  tenancy  in  common,  because  it  has  not 
provided  any  mode  for  their  separation  and  ascertainment":  Wolf-v.  Fleisch- 
acker,  6  CaL  244;  approved  in  Carroll  v.  Ellis,  63  Id.  442;  Terry  v.  Berry, 
13  Nev.  514;  Lindley  v.  Davis,  6  Mont.  453,  456;  West  v.  Ward,  26  Wis.  579; 
and  see  Holmes  v.  Wincliester,  138  Mass.  542. 

But  a  different  view  is  entertained  in  Texas:  See  Clements  v.  Lacy,  51  Tex. 
150,  161,  reviewing  the  earlier  authorities.  Under  the  peculiar  and  libera] 
system  of  exemptions  of  that  state,  it  is  held  that  a  partner  in  a  solvent 
firm  may  destinate  his  interest  in  partnership  realty  as  a  part  of  his  home- 
stead, and  thus  secure  it  from  forced  sale;  and  that  his  occupation  and  use 
of  such  property  as  his  place  of  business,  with  the  consent  of  the  other 
members,  is  such  use  of  it  as  will  effect  the  destination  of  his  interest  therein 
as  homestead,  and  deprive  his  creditors,  his  copartners,  and  himself  of  the 
power,  thereafter,  to  impose  upon  it  any  lien,  except  for  purchase-money  or 
for  improvements:  Swearingen  v.  Basseit,  65  Tex.  267;  and  see  Wheatley  v. 
Oriffin,  60  Id.  209.  So  it  is  held  in  Georgia  that  a  homestead  in  the  undi- 
vided half  of  the  real  estate  belonging  to  the  firm  may  be  set  apart  to  the 
wife  of  one  of  the  partners,  and  such  homestead  will  be  valid  against  gen- 
eral creditors  of  the  firm:  Hunnicutt  v.  Summey,  63  Ga.  586;  and  see  Harris 
V.  Visscher,  57  Id.  229;  Newton  v.  Summey,  59  Id.  397.  But  a  tenant  in 
common  is  not  entitled  to  a  right  of  homestead  on  the  common  property,  to 
the  prejudice  of  the  rights  of  a  co-tenant:  Clements  v.  Lacy,  51  Tex.  150; 
Lytich  V.  Lynch,  18  Neb.  586. 

Mere  occupation  of  a  homestead  owned  by  one  partner,  for  use  in  the 
partnership  business,  such  use  not  being  inconsistent  with  use  as  homestead, 
will  not  affect  the  homestead  exemption,  attached  to  the  property  before 
such  use:  Smii/t  v.  Clienault,  48  Tex.  455;  and  see  Grijie  v.  Maxey,  58  Id. 
210.     And  where  two  or  more  persons  engage  in  business,  each  individually 


April,  1886.]  Carpenter  v.  Rodgers.  595 

owning  a  portion  of  the  property  used  in  the  business,  the  only  com- 
munity of  interest  being  in  the  profits,  the  property  is  not  regarded  as  part- 
nership property  in  such  sense  as  to  prevent  the  owners  from  claiming  it  aa 
exempt  from  execution:  Boot  v.  Oay,  ^  Iowa,  399. 


Caepenter  V.  RodqeeS. 

[61  MiCHlOiJT,  884.  J 

CoKTKAOT  Entered  into  bt  Pakty  Who  la  so  Deunk  as  not  to  Know 
What  He  is  Doing  is  Voidable  only,  and  not  void,  and  may  be  rati- 
fied by  such  party  when  he  becomes  sober. 

Replevin.    The  opinion  states  the  case. 

Clapp  and  Bridgman,  for  the  defendant  and  appellant. 

0.  W.  Coolidge  and  E.  L.  Hamilton^  for  the  plaintiff. 

By  Court,  Sherwood,  J.  The  parties  in  this  case,  on  the 
second  day  of  January,  1885,  traded  horses. 

The  plaintiff  gave  his  team,  and  an  order  on  Mr.  Tuttle-of 
Niles  for  five  dollars,  for  the  team  of  defendant. 

The  team  obtained  by  the  plaintiff  proved  to  be  of  little 
value,  unsound,  and,  as  plaintiff  claimed,  not  as  represented; 
and  that  the  defendant  cheated  and  defrauded  him  out  of  his 
property  by  taking  advantage  of  hie  inability  when  he  was 
drunk  in  making  the  trade;  and,  claiming  a  rescission  of  the 
contract  under  which  the  trade  was  made,  he  brought  replevin 
to  obtain  the  team  he  let  the  defendant  have  on  the  exchange. 

The  property  was  taken  upon  the  writ,  and  delivered  by  the 
sheriff  to  the  plaintiff. 

The  cause  was  tried  in  the  Berrien  circuit  before  a  jury,  and 
the  plaintiff  prevailed. 

On  the  trial,  testimony  was  given  tending  to  show  that  the 
plaintiff  was  a  young  man  of  weak  and  feeble  mind,  scarcely 
able  to  do  any  business  requiring  the  exercise  of  ordinary 
judgment;  and  that  he  was  intoxicated  to  the  extent  when  he 
made  the  trade  that  he  did  not  know  what  he  was  doing,  or 
at  least,  have  intelligent  comprehension  of  the  transaction; 
that  the  defendant  was  a  horse-trader  unknown  to  the  plaintiff, 
and  that  the  trade  was  brought  about  by  one  Allen,  a  neighbor 
of  the  plaintiff,  and  a  friend  of  the  defendant;  that  it  was 
through  Allen  the  intoxication  of  the  plaintiff  was  procured; 
that  the  team  of  plaintiff  was  a  pair  of  young  horses,  and 


596  Cabpenteb  v.  Rodgebs.  [Mich. 

worth  fix)m  $150  to  $200;  and  that  the  defendant's  team  was 
not  worth  over  $75. 

On  the  part  of  the  defendant,  these  facts,  or  most  of  them, 
were  controverted,  and  counsel  for  defendant  denied  there  had 
ever  been  any  rescission  of  the  contract. 

The  court,  in  charging  the  jury,  said  upon  the  subject  of 
rescission,  and  the  condition  of  the  plaintiff  at  the  time  the 
trade  was  made:  "If  he  was  so  drunk  that  he  did  not  know 
what  he  was  about,  the  contract  would  be  void,  and  so  no 
rescission  of  the  contract  would  be  needed.  He  could  replevy 
his  property  without  any  rescission,  because  there  would  be 
no  contract  to  rescind." 

This  was  error. 

A  contract  entered  into  by  a  person  who  is  so  drunk  as  not 
to  know  what  he  is  doing  is  voidable  only,  and  not  void,  and 
may  therefore  be  ratified  by  him  when  he  becomes  sober: 
Story  on  Sales,  sec.  15;  Benjamin  on  Sales,  sec.  43;  Bishop  on 
Contracts,  sec.  304;  Matthews  Y.Baxter^li.'R.  8  Ex.  132;  Caul- 
kins  V.  Fry,  35  Conn.  170;  Foss  v.  Hildreth,  10  Allen,  76-79; 
Van  Wyck  v.  Brasher,  81  N.  Y.  260;  Wamock  v.  Campbell,  25 
N.  J.  Eq.  485;  French  v.  French,  8  Ohio,  214;  31  Am.  Dec.  441; 
Noel  V.  Karper,  53  Pa.  St.  97;  Dulany  v.  Green,  4  Harr.  (Del.) 
285;  Cummings  v.  Henry,  10  Ind.  109;  Cory  v.  Cory,  1  Ves. 
Sr.  19;  Pitt  v.  Smith,  3  Camp.  33;  Newell  v.  Fisher,  11  Smedes 
&  M.  431;  49  Am.  Dec.  66;  Reynolds  v.  Waller,  1  Wash.  (Va.) 
164;  Menhins  v.  Lightner,  18  111.  282;  Taylor  v.  Patrick,  1  Bibb, 
168;  Broadwater  v.  Dame,  10  Mo.  277;  Hutchinson  v.  Brown, 
1  Clarke  Ch.  408;  Story  on  Contracts,  27,  28;  Chitty  on  Con- 
tracts, 153,  154. 

Without  passing  upon  the  facts  whether  or  not  the  plaintiflF's 
testimony  showed  a  rescission,  or  what  the  jury  would  have 
been  warranted  in  finding  upon  that  subject  under  a  proper 
charge  by  the  court,  we  can  only  say,  upon  the  record  as  pre- 
sented, it  was  necessary  for  the  plaintiff  to  show  a  rescission 
of  some  kind  before  he  could  maintain  his  suit,  and  the  court 
should  have  so  charged  the  jury. 

We  find  no  other  error  in  the  case.  The  judgment  must  be 
reversed,  and  new  trial  granted. 


Intoxioation  A3  GROtmi)  FOR  Avoiding  Contract:  See  Reynolds  v.  Z>«- 
e^aums,  76  Am.  Dec.  101,  and  cases  collected  in  note  105;  Joest  v.  WiUianu, 
13  Am.  Rep.  377,  and  note  381;  Holland  v.  Barnes,  25  Id.  595;  Bush  v. 
Brehig,  57  Id.  469. 


April,  1886.]  Wood  v.  Callaghan.  B97 

Will  Made  bt  Ohe  then  imDER  Iitflttence  of  Intohcating  Liqitobs  is 
KOT  FOB  That  Reason  Void,  unless  he  was  so  excited  by  the  liquor  as  to 
disorder  his  faculties  and  pervert  his  judgment:  Peck  v.  Cary,  84  Am.  Dec 
220,  and  see  note  240. 

Dbuneenness  of  Maker  of  Negotiable  Promissort  Note  cannot  bk 
Set  UP  AS  Defense  against  an  innocent  holder  for  value:  State  Bank  v.  McCoy, 
8  Am.  Rep.  246,  and  note  251;  Miller  v.  Finley,  12  Id.  306. 


Wood  v,  Callaghan. 

[61  Michigan,  402.] 

In  Cask  of  Protest  of  Note,  Commercial  Usage  only  Reoitires  Notice 
TO  BE  GrvEN  to  IMMEDIATE  Indorser,  by  the  indorsee  making  demand 
of  payment.  It  is  not  necessary  for  the  notary  to  take  any  notice  of  the 
residence  of  the  maker  being  upon  the  note,  or  to  make  any  inquiry  as 
to  the  residence  of  any  of  the  indorsers,  except  the  last.  Such  a  rule 
would  greatly  embarrass  and  obstruct  business,  and  is  not  required  by 
the  authorities. 

Street  Letter-boxes  and  Street  Delivery  are  Legal  Part  of  Post- 
office  System,  and  a  letter  deposited  in  one  of  these  boxes  must  be  con- 
sidered as  being  delivered  or  mailed  at  the  post-office. 

Holder  of  Several  Unpaid  Notes,  Some  Secured  and  Others  Unse- 
cured, MAY,  IN  Absence  of  Any  Agreement  or  direction  as  to  the  ap- 
plication of  payment,  apply  the  money  exclusively  to  the  payment  of 
any  one  of  the  notes,  and  is  not  bound  to  a  pro  rata  application  of  it. 

Assumpsit.    The  facts  appear  in  the  opinion. 

Conelyj  Maybury,  and  Lucking,  for  the  defendant  and  ap- 
pellant. 

James  T.  Keena,  and  John  Atkinson ,  and  Isaac  Marsion,  for 
the  plaintiflfs. 

By  Court,  Mobse,  J.  This  cause  was  tried  in  the  superior 
court  of  the  city  of  Detroit,  without  a  jury,  and  judgment  ren- 
dered for  the  plaintiffs. 

The  facts  as  found  by  Judge  Chipman,  so  far  as  it  is  neces- 
sary to  consider  them  to  deterniine  the  questions  raised  in  this 
court,  are  substantially  as  follows:  — 

The  plaintiffs  reside  in  Louisville,  Kentucky,  and  are  co- 
partners under  the  name  of  Alvin  Wood  &  Co. 

The  defendant,  Callaghan,  resides  in  the  city  of  Detroit,  and 
has  resided  there  since  the  sixteenth  day  of  June,  1884,  at 
least.  On  that  day  he  sold  a  stock  of  groceries,  and  fixtures 
and  furniture,  in  his  store  in  Detroit  to  the  defendant,  David 
Pennock,  and  received  in  part  payment  thereof  six  promissory 


088  Wood  v.  Callaqhan.  [Mich. 

noteB,  in  all  amounting  to  two  thousand  eight  hundred  dol- 
lars. 

The  first  four  of  said  notes  were  each  for  $466.67,  and  the 
last  two  of  them  for  $466.66  each.  They  were  dated  on  the 
first  days  of  July,  August,  September,  October,  November,  and 
December,  respectively,  and  each  made  payable  in  one  month 
after  date,  payable  to  the  order  of  Callaghan  at  the  People's 
Savings  Bank  in  Detroit.  Each  was  signed  by  David  Pen- 
nock,  and  indorsed  by  Homer  Pennock  at  the  time  Callaghan 
received  them. 

The  payment  of  these  notes  was  secured  by  a  chattel  mort- 
gage, dated  June  16,  1884,  executed  by  David  Pennock  to 
Callaghan,  and  covering  the  stock  of  goods  sold  by  him  to 
Pennock,  which  mortgage  stated  the  location  of  said  goods 
to  be  at  No.  266  Howard  Street,  Detroit.  The  notes  dated 
July  1st  and  August  Ist  were  paid  to  Callaghan  at  maturity. 

The  defendant,  Callaghan,  bought  goods  of  plaintifiB,  and 
in  part  payment  therefor  gave  them  the  three  notes  dated 
October  1st,  November  Ist,  and  December  1st.  The  note 
dated  September  Ist  he  retained,  and  it  was  paid  to  him 
when  due.  Of  the  notes  sent  by  him  to  plaintiffs,  the  two 
dated  October  Ist  and  November  1st  he  indorsed  without  re- 
course; and  the  one  dated  December  Ist  he  indorsed  in  blank, 
which  is  the  note  sued  for  and  declared  upon  in  this  case. 

The  chattel  mortgage,  upon  its  execution,  was  filed  in  the 
office  of  the  city  clerk  in  Detroit,  where  it  remained.  It  does 
not  appear  that  it  was  ever  assigned  to  plaintiffs. 

October  31,  1884,  David  Pennock  gave  a  bill  of  sale  of  the 
goods  covered  by  the  mortgage  to  Marcus  A.  Chase,  who  knew 
of  the  mortgage.  November  7,  1884,  Chase  sold  the  goods  for 
five  hundred  dollars  to  one  Gross.  Gross  paid  sixty  dollars  in 
money,  and  gave  his  note,  with  Callaghan  as  joint  signer,  for 
the  balance.  Gross  ran  the  business  a  short  time,  and  then 
sold  the  stock  to  the  wife  of  Callaghan.  January  23,  1885, 
Callaghan  paid  Chase  upon  the  Gross  note  $16.50,  which 
Chase  indorsed,  and  then  transferred  the  balance  of  the  note 
to  plaintifiis,  indorsing  it  without  recourse. 

January  24,  1885,  Callaghan  paid  the  balance  of  this  Gross 
note  to  them,  the  amount  being  $423.50.  At  this  time  the 
three  notes  of  which  David  Pennock  was  maker  and  Calla- 
ghan indorser  in  the  hands  of  the  plaintiffs  were  unpaid,  and 
were  the  only  notes  not  paid.  They  then  amounted,  respeclr 
ively,  principal  and  interest,  to  the  following  sums:  $474.20, 


i 


April,  1886.]  "Wood  v.  Callaghan.  599 

$471. 47,  and  $468.75.  No  other  payment  has  been  made  upon 
any  of  them. 

Prior  to  the  maturity  of  the  note  sued  upon  it  was  indorsed 
by  the  plaintiffs  to  the  Farmers'  and  Drovers*  Bank  of  Louis- 
ville, Kentucky,  and  by  that  bank  to  the  Detroit  National 
Bank. 

On  the  third  day  of  January,  1885,  William  T.  De  Graff 
presented  the  note  to  the  People's  Savings  Bank  for  payment, 
and  made  his  certificate  of  protest.  He  filled  out  four  notices 
of  protest,  directed,  respectively,  to  the  Farmers'  and  Drovers' 
Bank  aforesaid,  to  the  plaintiffs,  John  Callaghan,  and  Homer 
Pennock.  The  address  of  the  first  was  Louisville,  Kentucky. 
The  others  were  without  any  place  or  address.  These  notices 
were  sent  under  cover  of  one  envelope,  directed  properly  to  the 
Farmers'  and  Drovers'  Bank.  This  envelope  was  -deposited  in 
the  Detroit  post-oflBce  on  the  evening  of  Saturday,  January  3, 
1885,  between  eight  and  nine  o'clock,  after  the  last  mail  for 
that  day  for  Louisville  had  left  the  post-oflBce.  It  went  by 
the  next  mail,  Sunday  eve,  which,  if  on  time,  would  have 
reached  Louisville  Monday  at  1  o'clock  p.  m. 

There  was  then  a  regular  carrier  delivery  in  Louisville,  one 
about  7:30  in  the  morning,  another  between  10  and  11  o'clock 
A.  M.,  a  third  between  1  and  2  o'clock  p.  m.,  and  a  fourth  be- 
tween 3  and  4  in  the  afternoon.  This  letter,  arriving  at  1  p.  m., 
would  not  be  delivered  until  between  3  and  4  p.  m. 

The  Louisville  bank  closes  its  doors  at  3  o'clock,  so  that  no 
delivery  could  be  made  to  said  bank  by  carrier  after  3  o'clock 
in  the  afternoon.  The  notices  were  delivered  to  the  said  bank 
on  the  morning  of  the  6th.  Said  bank  that  day  mailed  all 
said  notices,  except  the  one  directed  to  itself,  to  Alvin  Wood 
&  Co.,  who  received  them  on  the  same  day  about  11  o'clock 
in  the  morning;  and  that  plaintiffs,  about  3  o'clock  in  the  after- 
noon of  that  day,  deposited  in  a  "letter-box,"  erected  and  main- 
tained by  the  United  States  post-office  or  mail  department,  at 
the  said  city  of  Louisville,  and  postage  prepaid,  an  envelope 
directed  as  follows:  "John  Callaghan,  Esq.,  Detroit,  Mich., 
cor.  8th  and  Howard  ";  and  that  letters  and  all  mail  matter 
deposited  in  said  box  were  regularly  taken  therefrom  at  least 
three  times  a  day  by  carriers  in  the  employ  of  said  post-ofiice 
department.  Said  envelope  so  directed  to  said  defendant 
reached  said  post-oflBce  at  said  city  of  Louisville  at  11  o'clock 
in  the  morning  of  Wednesday,  January  7,  1885.  On  said 
•nvelope  there  were  printed  the  words:  "  If  not  called  for  in 


900  Wood  v.  CALLAaHAN.  [Mich. 

ten  days,  return  to  Alvin  Wood  &  Co.,  Distillers  Pure  Ken- 
tucky Whiskies,  S.  E.  cor.  First  and  Main  Sts.,  Louisville,  Ky." 

In  said  envelope  was  the  notice  heretofore  mentioned  as 
having  been  directed  to  John  Callaghan,  and  it  is  the  same 
notice  sent  by  De  Graflf  to  the  Farmers'  and  Drovers'  Bank, 
Louisville,  Kentucky,  under  cover.  No  notice,  or  letter,  or 
other  writing,  was  sent  to  said  Callaghan,  but  across  the  face 
of  the  notice  sent  there  were  written  in  pencil  the  words, 
*'  Sent  to  us  through  mistake."  Said  envelope  so  directed  to 
said  John  Callaghan  was  received  at  the  Detroit  post-office  on 
the  eighth  day  of  January,  A.  D.  1885,  at  ten  o'clock  in  the 
morning,  the  regular  and  usual  time  for  the  mails  to  go  from 
Louisville  to  Detroit.  Said  envelope  so  directed  to  said  John 
Callaghan,  and  inclosing  said  notice,  was  delivered  to  said 
Callaghan  in  the  afternoon  of  January  8, 1885,  by  the  carrier. 
At  the  time  of  its  receipt  by  Callaghan  it  had  across  it  the 
words  heretofore  mentioned,  "  Sent  to  us  through  mistake." 

At  the  time  of  the  taking  of  said  note  by  said  Alvin  Wood 
&  Co.,  they  knew,  and  ever  since  have  known,  that  said  Cal- 
laghan resided  at  the  corner  of  Eighth  and  Howard  streets, 
in  said  city  of  Detroit;  that  when  the  notary  demanded  pay- 
ment and  mailed  the  notices,  he  did  not  know  where  Cal- 
laghan's  residence  was,  nor  did  he  make  any  inquiry,  or  look 
into  the  city  directory  for  the  same;  Callaghan's  name  and 
address  were  in  the  directory. 

Upon  these  facts  the  circuit  judge  concluded,  as  matter  of 
law,  that  the  plaintififs  were  entitled  to  recover,  and  rendered 
judgment  accordingly  for  the  full  amount  of  the  note  and 
interest. 

The  defendant  brings  error,  and  insists  that  he  did  not  re- 
ceive due  notice  of  the  dishonor  of  the  note,  and  was  thereby 
discharged  from  his  liability  as  indorser. 

He  claims  that  the  notary  should  have  made  inquiry  for 
the  residence  of  Callaghan,  or  looked  in  the  directory,  either 
of  which  would  have  given  him  information  that  he  lived  on 
the  corner  of  Eighth  and  Howard  streets,  in  Detroit;  that, 
the  maker  and  indorser  both  living  in  Detroit,  the  notice 
could  not  be  transmitted  to  the  Louisville  bank  without  in- 
quiry; and  that,  granting  it  could  be  so  sent,  it  was  the  duty 
of  plaintififs  to  have  mailed  it  to  Callaghan  by  the  first  mail, 
which  they  did  not  do;  that  the  notice  should  have  been  de- 
livered by  them  at  the  general  post-office,  and  not  deposited 
in  a  street  letter-box,  which  caused  a  delay  of  a  day;  and 


April,  1886.]  Wood  v.  Callaghan.  601 

that  the  pencil  writing  upon  the  back  of  said  notice,  "  Sent  to 
us  through  mistake,"  was  in  fact  a  notice  to  Callaghan  that 
plaintiffs  did  not  intend  to  hold  him  upon  the  note. 

The  manner  of  sending  the  notices  was  according  to  com- 
mercial usage,  and  the  Detroit  National  Bank  was  only  re- 
quired to  give  notice  to  its  immediate  indorser,  the  Louisville 
bank.  We  do  not  deem  it  necessary  for  the  notary,  in  a  case 
like  the  present,  to  take  any  notice  of  the  residence  of  the 
maker  being  upon  the  note,  or  to  make  any  inquiry  as  to  the 
residence  of  any  of  the  indorsers  except  the  last.  Such  a 
rule  would  greatly  embarrass  and  obstruct  business,  and  is  not 
required  by  the  authorities:  Story  on  Bills,  sees.  326,331,419, 
426;  Bay  ley  on  Bills,  2d  Am.  ed.,  275;  Wamesit  Bank  v.  But- 
trick,  11  Gray,  387;  Eagle  Bank  v.  Hathaway,  5  Met.  212;  Law- 
son  V.  Farmers^  Bank,  1  Ohio  St.  206;  Warren  v.  Oilman,  17 
Me.  360. 

After  the  transmission  of  the  notices  from  Detroit,  due  dili- 
gence was  exercised  by  all  parties.  The  Louisville  bank 
delivered  the  notices  to  the  plaintiffs  on  the  same  day  they 
received  them,  January  6th,  and  plaintiffs  mailed  the  notice 
to  defendant  the  same  day.  The  delay  was  in  the  post-office 
department,  and  not  in  the  Louisville  bank  or  the  plaintiffs. 
The  street  boxes  and  street  delivery  are  a  legal  part  of  the 
post-office  system,  and  a  letter  deposited  in  one  of  these  must 
be  considered  as  being  delivered  at  the  post-office:  Abbott  on 
Trial  Evidence,  433,  434;  Greenwich  Banky.  De  Oroot,  7  Hun, 
210;  Peareev.  Langfit,  101  Pa.  St.  507;  47  Am.  Rep.  737. 

There  were  no  laches  on  the  part  of  plaintiffs,  nor  can  the 
fact  that  they  indorsed  the  notice  as  they  did  have  any  effect 
upon  defendant's  liability.  The  sending  of  the  notice  to  him 
was  not  necessary,  if,  as  defendant  claims,  the  plaintiffs  wished 
to  release  him.  Instead  of  its  being  a  notice  to  him  that  they 
did  not  look  to  him  for  a  payment  of  the  note,  as  argued  by 
defendant's  counsel,  we  think  it  evidenced  a  desire  on  their 
part  to  hold  hira,  which  they  are  attempting  to  do  in  this  suit. 

The  counsel  for  defendant  also  claim  that  the  chattel  mort- 
gage was  a  security  equally  for  all  the  notes,  and  that  the 
proceeds  of  it  could  not  be  all  indorsed  upon  one  note,  but 
should  at  least  have  been  applied  pro  rata  »ipon  the  three  then 
in  plaintiffs'  hands.  He  also  argues  that  the  defendant  indors- 
ing two  of  the  notes  without  recourse,  and  this  one  in  blank, 
it  was  intended  by  him  that  the  chattel  mortgage  should 
stand  as  security  for  the  note  upon  which  he  might  be  held. 


602  Wood  v.  Callaghan.  [Mich. 

At  the  time  the  money  was  realized  from  the  chattel  mort- 
gage and  paid  to  plaintiffs,  they  owned  all  the  unpaid  notes 
to  which  the  mortgage  was  collateral;  and  in  the  absence  of 
any  agreement  with  Callaghan,  at  the  time  they  took  the 
notes  or  subsequently,  could  apply  the  proceeds  of  the  security 
as  they  saw  fit  upon  one  or  all  of  these  notes.  There  was  no 
agreement  between  them  and  Callaghan  about  it,  and  his 
signing  the  notes  as  he  did  left  the  plaintiffs,  outside  of  the 
mortgage,  with  two  notes  with  only  the  Pennocks  liable  upon 
them,  and  this  note  in  suit  with  the  additional  security  of 
Callaghan's  name.  They  then  stood,  when  they  received  the 
money  derived  from  the  mortgage  security,  in  the  well-known 
relation  of  a  creditor  having  a  secured  and  an  unsecured  debt. 
The  chattel-mortgage  payment  was  the  payment  of  the  maker 
who  gave  it,  and  no  direction  being  given  as  to  the  applica- 
tion of  the  payment  by  the  debtor,  or  by  Callaghan,  who  sent 
it,  the  plaintiffs  had  an  undoubted  right  to  apply  it  upon  the 
unsecured  first  note,  which  they  did. 

Callaghan  has  no  equity  which  entitles  him  to  a  pro  rata 
application  of  the  money.  He  had  recovered  his  pay  in  full 
upon  the  notes  retained  by  him;  and  when  he  indorsed  this 
note  in  blank  there  is  nothing  to  show  that  he  did  so  in  refer- 
ence to  this  mortgage,  or  in  dependence  upon  its  contributing 
to  pay  it.  The  only  reasonable  inference  to  be  drawn  from 
the  notes  being  taken  by  plaintiffs  as  they  were,  to  my  mind, 
is,  that  they  and  Callaghan  both  supposed  that  the  chattel- 
mortgage  security  would  not  liquidate  more  than  the  first  two 
of  them;  and  in  view  of  that  fact  the  indorsement  of  Cal- 
laghan was  required  and  given  upon  the  last.  In  fact,  it  did 
not  pay  the  whole  of  the  first  note:  Brandt  on  Suretyship, 
eec.  286;  Mathews  v.  Switzler,  46  Mo.  301-303. 

It  must  be  remembered,  also,  that  Callaghan  was  not  pay- 
ing Pennock's  debt  to  the  plaintiffs,  but  a  debt  of  his  own,  for 
which  he  had  turned  out  the  paper  of  Pennock  in  payment. 

We  find  no  error  in  the  proceedings,  and  the  judgment  is 
aflBrmed,  with  costs.  

Notary's  Certificatb  ov  Notice  op  Dishonob,  wbxs  Defective:  See 
Blocomb  V.  De  lAzardi,  99  Am.  Dec.  740. 

NoTiCB  of  Protest  by  Mail,  Sufficiency  of:  Shoemaker  v.  Meclianic'$ 
Bank,  98  Am.  Dec.  315,  and  note  317;  Pearce  v.  Langfit,  47  Am.  Rep.  737; 
SeaUm  v.  Scovill,  26  Id.  779;  Central  Nat.  Bank  v.  Adajnt,  32  Id.  495;  Smith 
T.  PoiOon,  41  Id.  402;  First  Nat.  Bank  v.  Wood,  31  Id.  692;  Van  Brunt  v. 
Vaughn,  29  Id.  468;  Forbes  v.  Omaha  Nat.  Bank,  35  Id.  480;  Davey  ▼.  Jone»t 
9J  Id.  605;  CaroUna  Nat.  Bankv.  WaUace^  36  Id.  694. 


April,  1886.J  Pearl  v.  Garlock.  603 

KoncE  OP  Protest  must  be  Given  to  Ijtdorseb  althottgh  He  has 
Made  a  general  assignment  for  the  benefit  of  creditors:  House  v.  FtTUon  Nat. 
Bank,  54  Am.  Rep.  813.     Compare  Id.  818,  note. 

Application  of  Payments  cannot  be  Made  to  Illegal  Claim:  Back- 
man  v.  Wrigld,  65  Am.  Dec.  187,  and  cases  collected  in  note  190. 

Rule  as  to  Application  op  Payments:  Pickering  v.  Day,  95  Am.  Dec. 
291,  and  note  313;  Heraey  v.  Bennett,  41  Am.  Rep.  271. 

Cbeditob  Receivinq  Payments  without  Direction  as  to  Application 
MAY  Apply  Them  to  Any  Debt  not  Illegal,  even  if  it  would  not  support 
an  action;  as,  for  instance,  a  debt  on  which  no  action  would  lie  by  reason 
of  the  statute  of  frauds:  Haynes  v.  Nice,  1  Am.  Rep.  109. 


Pearl  v.  Gaelock. 

[61  Michigan,  419.] 

Reflktik,  Proop  op  Ownership  op  Property.  —  A  replevin  suit  was  dis- 
continued by  the  plaintiff,  the  defendant  took  judgment  for  a  return  of 
the  property,  and  issued  an  execution,  which  was  returned  unsatisfied. 
In  a  suit  on  the  replevin  bond  for  failure  to  return,  held,  that  the  defend- 
ants were  entitled  to  show  that  the  principal  defendant  (plaintiff  in  the 
replevin  suit),  was  the  owner  of  the  property  at  the  time  it  was  replevied, 
and  was  still  such  owner. 

Where  Jihximent  in  Replevin  has  been  Rendered  on  Waives  op  Re- 
turn for  the  value  of  the  property,  all  proper  questions  must  be  liti- 
gated on  the  assessment  of  damages,  and  are  not  afterwards  open. 

Replevin  is  Possessory  Action,  and  does  not  necessarily  determine  title. 
It  may  fail  either  because  the  plaintiff  shows  no  right  of  possession,  or 
because  the  defendant  is  shown  not  to  have  wrongfully  withheld;  and  it 
may  fail  for  lack  of  demtmd  in  some  cases,  as  well  as  for  lack  of  substan- 
tial right. 

Judgment  in  Replevin,  where  there  is  No  Assessment  op  Damages 
Merely  Determines  the  right  of  possession  at  the  time,  and  is  not  in- 
consistent with  the  right  of  the  party  defeated  to  recover  it  back  after- 
wards under  a  change  of  circumstances. 

Defendant  in  Replevin  should,  upon  Replevin  Bond,  Recover  No 
More  than  his  legal  damages,  which  depend  upon  the  nature  of  his  right 
to  the  property,  or  the  character  in  which  he  held  it.  If  he  had  merely 
a  possessory  or  partial  interest  in  the  property,  and  was  in  no  position 
to  hold  the  entire  interest  for  some  one  else,  then  he  should  not  recover 
the  full  value 

Action  on  replevin  bond.    The  opinion  states  the  case. 

H.  J.  Patterson^  for  the  defendants  and  appellants. 

CooTc  and  Daboll,  for  the  plaintiff. 

By  Court,  Campbell,  C.  J.  Pearl,  as  assignee  of  Henry 
8tark,  sued  defendants  on  a  replevin  bond  given  to  Stark,  as 
defendant,  in  a  suit  brought  by  Eldorus  Garlock  for  a  horse. 


604  Pearl  v.  Garlock.  [Mich. 

The  suit  having  been  discontinued,  Stark  took  judgment  for  a 
return,  and  issued  an  execution,  which  was  returned  unsatis- 
fied.    Stark  assigned  all  his  interest  to  Pearl. 

Upon  the  trial  of  the  suit  upon  the  bond,  defendantd,  by 
way  of  defense,  oflfered  to  show  that  Eldorus  Garlock,  the  prin- 
cipal defendant,  was  the  owner  of  the  horse.  The  court  refused 
to  admit  this  testimony,  and  held  that  the  title  to  the  horse 
was  settled  in  the  replevin  suit,  and  plaintiff  was  entitled  to  a 
judgment  for  its  full  value,  which  was  assessed  by  the  jury  at 
forty-five  dollars. 

The  court  also  refused  to  submit  to  the  jury  a  question 
whether  the  horse  was  owned  by  Stephen  Pearl  when  he  took 
it  away  from  Garlock;  but  as  there  is  nothing  in  the  record 
to  show  how  this  question  came  into  the  case,  while  it  may 
have  been  important,  it  is  not  shown  to  be  so,  and  we  cannot 
hold  the  refusal  erroneous. 

We  think  the  court  erred  in  ruling  out  the  testimony  of  own- 
ership. It  has  been  held  several  times  that  where  a  judgment 
has  been  rendered  on  waiver  of  return  for  the  value  of  the 
property,  all  proper  questions  must  be  litigated  on  the  assess- 
ment of  damages,  and  are  not  afterwards  open:  Williams  v. 
Vail,  9  Mich.  162;  80  Am.  Dec.  76;  Ryan  v.  Akeley,  42  Mich. 
516.  And  so,  when  a  third  person,  without  any  interest  of  his 
own,  replevies  from  an  oflBcer,  and  return  is  awarded,  the  lat- 
ter may  sometimes,  if  not  always,  have  judgment  for  the  en- 
tire value,  and  may  become  entitled  to  hold  it  for  the  parties 
in  interest:  First  Nat.  Bank  v.  Crowley,  24  Id.  492.  And  a 
defendant  in  replevin,  from  whom  property  is  unlawfully  re- 
plevied, may  have  a  claim  for  damages  on  similar  principles, 
even  though  not  personally  owning  the  property:  Burke  v. 
Burke,  34  Id.  451. 

But  in  the  present  case  the  record  does  not  show  by  what 
right  Stark  was,  or  claimed  to  be,  in  possession  of  the  property 
when  replevied  from  him.  He  may  or  may  not  have  been  in 
a  position  to  have  the  full  value  of  the  horse,  or  the  horse 
itself,  restored  to  him.  His  damages  for  non-return  must  have 
depended  upon  the  nature  of  the  right  which  he  possessed,  oc 
the  character  in  which  he  held  it. 

An  action  of  replevin  does  not  necessarily  determine  title. 
It  is  a  possessory  action,  and  may  fail  either  becaut^c  the 
plaintiff  shows  no  right  of  possession,  or  because  the  defend- 
ant is  not  shown  to  have  wrongfully  withheld  it.  It  may  fail 
for  lack  of  demand  in  some  cases,  as  well  as  for  lack  of  sub- 


April,  1886.]  Peabl  v.  Garlock.  605 

stantial  right.  In  Deyoe  v.  Jamison.,  33  Mich.  94,  it  was  held 
that  a  judgment  in  replevin,  where  there  is  no  assessment  of 
damages,  merely  determines  the  right  of  possession  at  the 
time,  and  is  not  inconsistent  with  the  right  of  the  party  de- 
feated to  recover  it  back  afterwards  under  change  of  circum- 
stances. In  that  case  a  vendor,  upon  a  partial  default  of 
payment,  recovered  possession  of  the  property  sold,  on  which 
he  retained  a  lien.  Afterwards,  upon  tender  of  the  debt,  it 
was  held  the  vendees  could  replevy  it  back.  Had  Stark  got 
back  the  horse  on  his  judgment  of  return,  there  is  nothing  in 
the  record  to  show  that  Garlock  could  have  had  no  right  to 
reclaim  the  animal  on  some  conditions;  and  if  owner,  he  prob- 
ably would  have  had. 

There  is  no  reason  why  the  defendant  in  replevin  should, 
upon  the  replevin  bond,  recover  any  more  than  his  legal  dam- 
ages. If  he  had  merely  a  possessory  or  partial  interest  in  the 
horse,  and  was  in  no  position  to  hold  the  entire  interest  for 
some  one  else,  then  he  should  not  recover  the  full  value.  The 
oflfer  to  show  ownership  was  entirely  proper.  The  court  ex- 
cluded it  on  the  ground  that,  by  the  judgment  for  return,  it 
was  determined  that  Stark  owned  the  horse.  This  was  not  the 
effect  of  the  judgment.  That  merely  found  that  plaintifif  had 
no  right  to  seize  the  horse  on  replevin  from  Stark  at  the  time 
and  in  the  manner  shown.  We  have  no  means  of  knowing 
under  what  circumstances  this  was  done.  We  think  the  rela- 
tive rights  of  both  parties  could  be  examined,  and  while  some 
recovery  should  be  had  upon  the  bond,  its  extent  must  be 
measured  by  the  facts  to  be  shown. 

The  judgment  must  be  reversed,  and  a  new  trial  granted. 


Pkbsoh  HAvnro  mkithsr  Possession  kob  Right  or  Possbssion  cannot 
maintain  replevin:  Berthold  ▼.  Fox,  97  Am.  Deo.  243,  and  cases  in  note  247. 

Rkplxvin,  Mxasurk  ot  Damaqks  in  Action  or:  Herdie  v.  Young,  93  Am. 
Dec.  739,  and  note  744;  Berthold  v.  Fox,  97  Id.  243;  Yandk  v.  Kingsbury,  22 
Am.  Rep.  282,  and  note  284;  AUmv.  Fox,  10  Id.  641;  Washington  Ice  Co.  ▼. 
Webater,  16  Id.  462. 

Whkhk  Answer  in  Replevin  does  hot  Dent  Value  or  Propertt 
Alleged  in  Complaint,  evidence  aa  to  its  value  ahonld  not  be  admitted; 
TuUy  V.  Uarloe,  95  Am.  Dec.  102. 


6U(>  Cabstens  v.  Hanselman.  [Mich. 

Caestens  V.  Hanselman. 

[61  MlCHIOAN,  426.] 

Wi7B  Who  has  been  Desebted  bt  Husband  mat  Make  Bikdiko  Cok- 
TRACT  FOB  Medioal  SERVICES.  Such  services  are  regarded  in  law  as 
"  necessaries,"  the  same  as  food  and  clothing. 

■Married  Women  have  not  General  Power  itnder  Michigan  Stat0tb3 
TO  Make  Agreements  of  all  kinds,  bat  they  must  necessarily  be  able  to 
make  contracts  concerning  what  it  is  essential  for  their  safety  and  seen* 
rity  to  procure. 

Husband  Who  Deserts  his  Pamilt,  and  does  Nothing  for  their  Sup- 
port, may  be  regarded  as  refusing  to  perform  the  contracts  of  his  wife 
for  necessaries,  within  the  meaning  of  a  statute  which  makes  a  wife  lia* 
ble  to  be  sued  upon  any  contract  on  which  her  husband  is  not  liable,  or 
where  he  refuses  to  perform  it. 

It  is  not  Competent  to  Allow  Jurt  to  Determinb  for  Itself  whether 
physician's  course  has  been  proper  or  improper  in  the  treatment  of  a 
fractured  limb;  and  it  is  not  error  to  refuse  the  jury  permission  to  in- 
spect the  limb  for  that  purpose. 

Assumpsit.    The  opinion  states  the  case. 

William  L.  January  and  S.  Lamedf  for  the  defendant  and 
appellant. 

John  O.  Hawley^  for  the  plaintiflf. 

By  Court,  Campbell,  C.  J.  Plaintifif  sued  and  recovered 
below  for  medical  services  rendered  to  defendant  in  the  care 
and  treatment  of  a  fractured  leg.  It  was  defended  on  the 
double  ground  of  improper  treatment  and  of  defendant's  dis- 
ability to  contract.  The  question  concerning  the  quality  of 
plaintiff's  services  was  submitted  to  the  jury,  and  no  error  is 
assigned  on  it.  The  capacity  of  defendant  to  contract  is  the 
main  question  in  the  case.  The  evidence  of  contract  relations 
was  sufficient,  if  she  was  capable  of  binding  herself. 

She  was  a  married  woman  when  the  accident  happened 
which  disabled  her.  Her  husband  had  abandoned  her  nine 
or  ten  years  before.  She  supported  herself  by  her  own  exer- 
tions. 

That  the  medical  services  rendered  were  in  a  proper  sense 
necessaries  cannot  be  questioned.  As  such,  it  is  possible  the 
husband  might  be  responsible.  But  he  was  entirely  unknown 
in  this  transaction,  and  was  not  referred  to  by  any  one;  and 
plaintiff  had  never  heard  or  supposed  there  was  such  a  per- 
son. Our  statutes,  before  we  had  any  law  enlarging  the  busi- 
ness rights  of  married  women,  contained  liberal  provisions  to 
enable  women  who  were  deserted  to  act  for  themselves.    Since 


April,  1886.]  Carstens  v.  Hanselman.  607 

their  rights  have  been  put  under  their  own  control,  they  have 
had  general  power  to  contract  concerning  their  own  property, 
and  have  been  authorized  to  sue  singly  for  all  causes  of  ac- 
tion, and  to  be  sued  separately  for  all  their  torts.  Their  power 
to  make  any  kind  of  purchases  on  their  own  credit  has  been 
fully  recognized:  Paul  v.  Roberts j  50  Mich.  611;  Campbell  v. 
White,  22  Id.  178.  And  while  they  have  not  a  general  power 
to  make  agreements  of  all  kinds,  we  think  they  must  neces- 
sarily be  able  to  make  contracts  concerning  what  it  is  essen- 
tial for  their  safety  and  security  for  them  to  procure.  Section 
C298  of  Howell's  Statutes  makes  a  wife  liable  to  be  sued  upon 
any  contract  on  which  her  husband  is  not  liable,  or  where  he 
refuses  to  perform  it. 

Where  a  husband  utterly  deserts  his  wife,  it  would  be  a 
cruel  rule  for  her,  if  she  cannot,  in  his  absence,  at  least,  or  in 
his  presence,  if  he  does  not  himself  provide  for  her,  make  a 
binding  agreement  for  any  necessary,  whether  articles  to  be 
purchased  or  professional  help,  without  becoming  a  public 
charge.  It  is  not  to  be  expected  that  physicians  and  sur- 
geons will  always  feel  bound  to  render  gratuitous  treatment 
to  injured  persons,  and  when  the  occasion  is  pressing,  it  would 
be  unreasonable  to  delay  until  an  absent  husband  is  com- 
municated with  to  learn  whether  he  consents  or  refuses  to 
assume  her  contracts.  Time  will  not  allow  minute  inquiries, 
and  humanity  will  not  prompt  them.  It  seems  to  us  that  no 
sensible  line  can  be  drawn  between  contracts  for  food  and 
clothing  and  contracts  for  medical  aid.  It  is  not  going  out 
of  the  way  to  regard  a  husband  who  deserts  his  family,  and 
does  nothing  for  their  support,  as  refusing  to  perform  the  con- 
tracts of  his  wife  for  necessaries.  Such  stubborn  and  willful 
neglect  is  treated  as  equivalent  to  a  refusal, — in  most  cases,  of 
dereliction  of  duty;  and  there  is  no  reason  for  making  an 
exception  in  such  a  case  as  this.  We  think  the  contract  was 
binding. 

Error  is  assigned  because  the  court  refused  to  allow  de- 
fendant to  exhibit  her  injured  limb  to  the  jury.  The  injury 
occurred  several  years  before,  and  there  was  testimony  con- 
cerning the  correctness  of  the  treatment,  which  necessarily 
involved  medical  questions  which  no  jury  could  be  supposed 
to  fully  comprehend.  It  is  not  competent  to  allow  juries  to 
determine  for  themselves  whether  a  physician's  course  has 
been  proper  or  improper  in  the  treatment  of  a  fractured  limb; 
and  the  court  very  properly  refused  to  permit  them  to  inspect 


608  Ross  V.  Leggett.  [Mich. 

it  for  that  purpose.  No  inspection  after  an  injury  is  healed 
apart  from  some  knowledge  of  the  character  of  the  injury  and 
the  method  of  treatment,  could  enable  even  a  medical  expert 
to  decide  upon  the  merits  or  demerits  of  the  attending  sur- 
geon. A  jury's  guessing  from  such  an  inspection  would  be 
of  no  value  whatever,  and  any  needless  exposure  would  have 
been,  as  the  court  below  properly  held,  improper,  if  not  inde- 
cent. 

There  is  no  error  in  the  record,  and  the  judgment  must  be 
afiBrmed. 

Under  Michioan  Statutes,  Mabried  Woman  has  All  Powers  ov 
Feme  Sole  with  reference  to  her  separate  property:  Hing  v.  Burt,  97  Am. 
Dec.  200. 

Liability  of  Married  Woman  on  her  Contract  for  Necessaries  for 
Herself  and  Family:  Priest  v.  Cone,  31  Am.  Rep.  695;  Tiemeyer  v.  Turn' 
quUt,  39  Id.  674;  Wihon  v.  Herbert,  32  Id,  243;  Kronshop  v.  Shoniz,  37  Id 
817;  Sherwin  v.  Sanders,  59  Id.  750. 

Contract  by  Married  Woman  to  Pay  Attorney's  Fees,  when  Bind- 
ing: Porter  v.  Haley,  30  Am.  Rep.  502;  when  not  binding:  Musich  v.  Dodson^ 
43  Id.  780. 

Note  Given  by  Deserted  Wife,  while  Livino  Apart  from  Husband, 
FOR  Necessaries  Used  by  Her  in  her  own  support,  is  void  in  Vermont;  and 
her  promise  to  pay  it,  made  after  her  divorce  and  before  her  marriage,  is  with- 
out consideration  and  invalid:  Hayward  v.  Barker,  36  Am.  Rep.  762. 

Degree  of  Skill  Reqxtired  of  Physician,  and  how  to  be  Judged:  See 
LeigJiton  v.  Sargent,  64  Am.  Dec.  323,  and  note  329;  HoUzman  v.  Hoy,  59  Am. 
Rep.  390. 

Separate  Estate  of  Married  Woman  is  Liable  for  Bill  of  Physi- 
cian Called  by  Her  in  her  Last  Sickness,  and  for  the  funeral  ezpenaest 
McCkUan  v.  FUaoUt  68  Am.  Rep.  814. 


Eoss  y.  Leggett. 

[61  Michigan,  445.] 

In  Michigan,  No  Arrest  can  be  Made  for  Misdemeanor,  unless  bt 
Warrant,  upon  complaint  duly  made,  or  by  an  officer  or  by-stander 
who  actually  sees  the  offense  which  constitutes  the  misdemeanor. 

^^OTUAL  Damages  are  Those  Which  Injured  Party  is  Entitled  to 
Recover  for  Wrongs  Received  and  injuries  done  when  none  were 
intended.  Where  the  injuries  and  sufferings  were  intended  or  occur 
through  carelessness  or  negligence  amounting  to  a  wrong  so  reckless  and 
wanton  as  to  be  without  palliation  or  excuse,  further  damages,  which 
have  been  variously  termed  "exemplary,"  "punitory,"  "vindictive," 
"compensatory,"  or  "added"  damages,  may  be  given,  agreeably  to 
what  would  be  right  and  just  under  the  circumstances  of  each  particular 


June,  1886.]  Ross  v.  Leggett.  609 

Case.    The  facts  appear  in  the  opinion. 

Charles  M.  Swift  and  Otto  KirchneVj  for  the  defendant  and 
appellant. 

Charles  B.  Howell  and  Don  M.  Dickinson^  for  the  plaintiff. 

By  Court,  Sherwood,  J.  The  defendant  in  this  case  was 
president  of  the  Brush  Electric  Light  Company,  and  had  ob- 
tained from  the  city  of  Detroit  the  contract  for  lighting  the 
city  at  night,  by  electricity  displayed  from  towers. 

By  its  contract  with  the  city,  it  was  authorized  to  erect 
suitable  towers  for  that  purpose,  and  to  anchor  them,  by 
means  of  guys,  within  the  streets  of  the  city.  In  so  doing, 
and  for  the  purpose  of  anchoring  one  of  its  light-towers,  un- 
der the  direction  of  the  defendant,  the  company  planted  one 
of  its  guy-posts,  from  eight  to  ten  feet  high,  and  about  nine 
inches  in  diameter,  in  the  street  lawn,  on  the  south  side  of 
Joy  Street,  in  front  of  the  residence  of  the  plaintiff,  which 
was  located  at  the  southeast  comer  of  Joy  Street  and  Third 
Avenue. 

The  post  was  placed  in  the  lawn,  which  was  used  for  shade 
trees  and  ornamental  purposes,  about  midway  between  the 
curb  and  sidewalk,  a  little  one  side  of  the  walk  leading  from 
the  plaintiff's  yard  to  the  carriage  block,  on  Joy  Street. 

The  plaintiff  protested  against  the  use  of  his  street  lawn  for 
Buch  purpose,  and  forbade  the  defendant  setting  the  guy-post 
therein.  His  remonstrances  were  unheeded,  and  the  post  was 
placed  in  the  lawn. 

The  plaintiff  was  offering  his  house  and  lot  for  sale  at  the 
time,  and  considered  the  use  made  of  his  premises  by  the 
company  a  damage  to  the  property  of  at  least  five  hundred 
dollars. 

When  the  plaintiff  learned  of  the  intention  of  the  defendant 
to  thus  mar  the  beauty  of  his  lawn,  he  took  counsel  of  an 
attorney  as  to  the  right  of  the  company  to  thus  appropriate 
the  use  of  his  property,  and  was  informed  that  the  planting 
of  the  post  in  his  lawn  was  without  authority,  and  that  he 
had  the  legal  right  to  remove  the  same.  Acting  upon  advice 
thus  received,  after  the  post  was  set,  and  the  guy-line  was 
attached  thereto,  he  took  a  saw  and  cut  into  the  post  about 
four  inches. 

A  short  time  thereafter  the  defendant  came  to  his  house, 

and  demanded  that  plaintiff  should  pay  bim  six  dollars  for 
AM.  St.  Rbt.,  Vol.  I.  — 89 


610  Rosa  V,  Leqoett.  [Mich. 

the  post,  and  setting  the  same,  and  informed  him  that  he  had 
ordered  his  arrest,  and  that  an  officer  would  be  there  in  a  few 
moments  for  that  purpose.  The  oflBcer  soon  came,  and,  as  the 
plaintiflf  claims,  at  the  instance  of  the  defendant,  arrested  him, 
in  the  presence  of  his  wife  and  children,  and  took  him  to  the 
Tesidence  of  the  superintendent  of  police;  and  after  detaining 
him  there  about  twenty  minutes,  without  any  complaint  hav- 
ing been  made  or  warrant  issued  (it  then  being  between  eight 
and  nine  o'clock  in  the  evening),  the  oflBcer,  accompanied  by 
the  defendant  a  portion  of  the  way,  took  him  to  the  Fremont 
Street  station,  and  there  searched  him,  and  took  from  him  his 
watch,  some  keys,  a  pocket-knife,  and  his  money;  and  then 
locked  him  into  a  station  cell,  eight  by  ten  feet,  built  of  stone, 
and  lined  with  iron,  with  a  stone  floor,  and  furnished  with  no 
bed  or  furniture,  except  two  wooden  benches  about  sixteen 
inches  wide,  extending  the  length  of  the  cell. 

That  in  this  condition  he  was  imprisoned  throughout  the 
night,  and  until  about  nine  o'clock  the  next  morning,  when 
he  was  taken  from  the  cell,  and,  accompanied  by  an  ofl&cer, 
through  the  street  to  a  police  ofl&ce,  and  there  kept  until  about 
half-past  eleven  o'clock,  when  the  defendant  appeared,  and 
made  a  complaint  against  him  for  willfully  and  maliciously 
injuring  "personal  property  of  the  Brush  light  company,  to 
wit,  one  guy-post,"  on  the  twelfth  day  of  August,  1884,  "  to 
the  damage  of  six  dollars";  and  after  detaining  him  there 
until  about  twelve  o'clock,  the  police  justice  discharged  him 
upon  his  own  recognizance,  he  declining  to  plead  until  he  could 
see  his  counsel.  What  further  was  done  with  the  plaintiff  in 
the  police  court  does  not  appear  from  the  record,  although  we 
are  informed  by  the  brief  of  one  of  the  counsel  that  the  case 
against  him  was  subsequently  heard,  and  the  plaintiflf  was 
discharged. 

The  plaintiflf,  feeling  himself  greatly  aggrieved  and  injured 
in  the  premises,  brought  this  suit  against  the  defendant  in 
the  superior  court  of  Detroit,  alleging  as  his  cause  of  action 
his  wrongful  detention  and  imprisonment,  "  whereby  he  was 
greatly  injured  in  name  and  credit,  and  suflfered  great  pain 
and  mortification  and  disgrace,  to  his  damage  twenty  thousand 
dollars." 

The  defendant  pleaded  the  general  issue,  and  gave  notice 
that  he  would  show  on  the  trial  thereunder  "  that  the  plain- 
tiflf willfully  and  maliciously  and  feloniously  did  destroy  and 
injure  the  personal  property  of  the  B  -ush  Electric  Light  Com- 


June,  1886.]  Ross  v.  Leggett.  •  611 

pany,  to  wit,  one  wooden  post,  which  was  there  used  to  sup- 
port the  guy-lines  pertaining  to  a  tower,  the  property  of  said 
company,  contrary  to  the  statute  in  that  behalf  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  people  of  the 
state  of  Michigan ";  and  further  gave  notice  that  he  would 
show  "  that  he  had  reasonable  and  probable  cause  to  believe 
that  plaintifif  was  and  had  been  guilty  of  willfully,  maliciously, 
and  feloniously  destroying  and  injuring  the  said  guy-post,  as 
above  set  forth." 

The  cause  was  tried  before  Judge  Chipman,  by  jury,  and  a 
verdict  obtained  for  four  thousand  five  hundred  dollars  against 
the  defendant,  who  now  brings  error. 

The  record  contains  all  the  testimony  taken  in  the  case 
upon  the  trial,  and  the  charge  of  the  court  in  full. 

Twenty-seven  errors  are  assigned,  and  most  of  them  relied 
upon  for  reversal.  Six  relate  to  the  decisions  of  the  court 
overruling  defendant's  objection  to  testimony  offered  by  coun- 
sel for  plaintiff;  one  to  the  ruling  of  the  court  in  sustaining 
the  objection  of  plaintiff's  counsel  to  a  question  put  upon 
cross-examination.  We  have  carefully  examined  the  excep- 
tions upon  which  these  assignments  are  based,  and  are  satis- 
fied none  of  them  are  well  taken. 

Of  the  remaining  errors  assigned,  eleven  are  to  the  refusals 
of  the  court  to  charge  as  requested,  and  nine  relate  to  excep- 
tions taken  to  as  many  different  portions  of  the  charge  of  the 
court.  An  examination  of  the  requests  and  the  charge  shows 
several  of  the  defendant's  requests  were  given  by  the  court. 
The  remainder  were  properly  refused. 

The  exceptions  needing  most  consideration  are  those  re- 
lating to  the  charge  on  the  question  of  damages.  The  able 
briefs  of  counsel  on  both  sides  have  been  carefully  reviewed, 
and  the  authorities  consulted,  but  we  are  unable  to  concur  in 
the  conclusions  reached  by  the  learned  counsel  for  the  de- 
fendant. 

The  court,  in  his  charge  to  the  jury,  assumed  that  defend- 
ant had  the  right  to  plant  the  post  in  the  lawn  where  he  did, 
so  that  if  there  was  any  doubt  or  question  upon  that  subject 
the  charge  was  in  the  defendant's  favor,  and  it  is  unnecessary 
to  discuss  that  question  here. 

It  is  not  questioned  or  disputed  that  the  arrest  was  made 
without  any  warrant  or  other  process  being  issued  for  that 
purpose,  and  whether  or  not  it  was  made  by  direction  of  the 


612  Ross  V.  Leggett.  [Mich. 

defendant  was  properly  submitted  to  the  jury,  and  they  found 
against  the  defendant. 

The  court  further  charged  the  jury  that  if  the  plaintiff  was 
guilty  of  any  offense  in  cutting  the  post,  he  was  not  guilty  of 
felony,  but  of  a  misdemeanor.  "  That  no  arrest  can  be  made 
for  a  misdemeanor  unless  by  warrant,  upon  complaint  duly 
made,  or  by  an  oflficer  or  by-stander  who  actually  sees  the 
offense  which  constitutes  the  misdemeanor.  In  the  case  of 
felony  it  is  different.  There,  upon  proper  information, — such 
information  as  would  justify  a  reasonable  man  in  acting  upon 
it,  —  an  arrest  may  be  made  without  warrant,  and  by  one 
who  does  not  see  the  actual  commission  of  the  offense.  For 
the  purposes  of  this  case,  I  instruct  you  that  the  arrest,  if  an 
arrest  was  made,  being  without  warrant,  was  an  illegal  arrest. 
....  The  law  of  the  land,  under  the  circumstances  of  this 
case,  demanded  a  warrant,  ....  because,  if  made  at  all,  it 
was  made  by  a  party  who  did  not  see  the  commission  of  the 
misdemeanor,  and  therefore  had  no  authority  to  make  the 
arrest." 

We  think  these  instructions  stated  the  law  applicable  to 
the  case  correctly.  The  facts  upon  which  they  were  based 
were  substantially  undisputed,  and  we  do  not  think  the  of- 
fense, if  any  was  committed,  was  anything  more  than  a  mis- 
demeanor, if  all  the  testimony  given  upon  this  point  is  to  bo 
taken  as  true:  2  Cooley's  Bla.  Com.  243;  4  Bla.  Com.  244;  2 
Bishop  on  Criminal  Law,  sec.  1000;  Black  v.  State,  2  Md.  376; 
State  V.  Beekman,  27  N.  J.  L.  124;  72  Am.  Dec.  352;  Han- 
way  V.  Boultbee,  4  Car.  &  P.  350;  Rex  v.  Bright,  4  Id.  387; 
People  V.  Smith,  6  Cow.  258,  note  5;  Rex  v.  Powelly  2  Bam.  <fe 
Adol.  75. 

Upon  the  subject  of  damages,  the  court  charged  the  jury; 
"There  are  two  kinds  of  damages,  —  the  law  has  divided 

them  into  two  classes In  the  first  place,  there  are 

what  are  called  '  actual '  damages.  Then  there  are  what  are 
called  '  vindictive '  or  *  punitory '  damages,  or  what  our  own 
supreme  court  calls  'added'  damages,  for  want  of  a  better 
name.  Actual  damages  are  such  compensation  for  the  in- 
jury as  would  follow  from  the  nature  and  character  of  the  act. 
Actual  damages,  in  this  case,  would  be  compensation  for  such 
injuries  as  would  fall  upon  any  man  who  underwent  the  same 
treatment  which  Mr.  Ross  is  shown  to  have  undergone  in  this 
ease.  What  are  those  damages?  What  are  the  elements? 
There  is  the  pain  and  suffering  which  any  man  would  be  sup- 


June,  1886.]  Boss  v.  Leggett.  613 

posed — which  the  average  citizen  would  be  supposed — to  suf- 
fer under  those  circumstances.  There  is  being  shut  up, — the 
physical  discomfort.  There  is  the  sense  of  shame,  mortifica- 
tion, wrong,  and  outrage.  All  these  matters  enter  into  the 
actual  damages. 

"  You  are  to  view  Mr.  Ross  as  you  would  any  other  man  in 
that  regard.  You  are  to  be  guided  in  that  matter  by  your 
common  sense,  because  there  is  no  other  rule,  —  there  is  no 
other  way  of  getting  at  it.  Your  common  sense  is  to  deter- 
mine what  naturally  and  inevitably  would  be  the  suffering  of 
the  average  citizen  under  such  circumstances;  because  the 
law  will  not  allow  your  feelings  to  be  harrowed,  will  not  allow 
you  to  be  put  to  shame  and  mortification.  In  the  eye  of  the 
law,  those  attributes  of  manhood,  —  those  sentiments,  those 
sensitivenesses,  so  to  speak,  —  which  come  from  the  better 
quality  of  our  nature,  are  matters  which  are  not  to  be  trifled 
with,  any  more  than  a  man's  bones  or  his  flesh.  All  these 
things  the  law  considers  precious.  All  these  things  the  law 
considers  as  subjects  of  injury,  and  for  injuries  of  this  kind 
the  law  gives  compensation. 

"What  would  the  average  man  naturally  suflFer,  under  those 
circumstances,  from  this  imprisonment,  —  from  what  took 
place,  —  from  what  Mr.  Ross  was  subjected  to  that  night? 
What  the  average  man  would  suffer  under  those  circum- 
stances would  be  the  actual  damage.  But  beyond  actual 
damages,  the  law  gives  what  are  called  '  added '  damages. 
Those  grow  out  of  the  wantonness  or  atrocity,  so  to  speak, 
of  the  act.  Those  are  given  where  an  act  is  so  wanton,  so 
despotic,  of  so  oppressive  a  character,  or  where  it  entails  such 
ehame,  such  publicity  upon  a  party,  as  to  have  the  effect  of 
exciting  his  feelings  more  than  an  act  committed  under  less 
wanton,  less  oppressive  circumstances.  In  such  cases,  the  law 
Bays  the  damages  should  be  greater  because  the  injury  to  the 
feelings  is  greater. 

"  Now,  is  that  the  case  here?  The  actual  damages  nothing 
can  mitigate.  That  which  a  man  has  actually  suffered  noth- 
ing can  mitigate.  But  these  '  added '  damages,  as  they  are 
called,  may  be  mitigated  by  all  the  surroundings  of  the  case. 
Is  this  a  case  for  these  added  damages, — these  punitory,  ex- 
emplary damages, — in  addition  to  the  actual  damages?  That 
is  for  you  to  determine.  All  the  circumstances  of  the  act  are 
to  be  taken  into  consideration. 

"  If  you  consider,  under  the  explanation  I  have  given  you, 


614  Boss  V.  Legqett.  [Mich. 

that  this  a  case  for  these  added,  exemplary  damages, — these 
damages  over  and  beyond  the  actual  damages, — then  your 
next  question  will  be,  whether  there  is  anything  to  mitigate 
it;  whether  there  was  anything  in  the  conduct  of  Mr.  Ross  to 
excite  Mr.  Leggett  to  anger;  whether  Mr.  Leggett,  under  the 
circumstances,  had  a  right  to  be  angry;  whether,  if  angry, 
Mr.  Ross's  conduct  naturally  provoked  it;  whether  Mr.  Ross 
did  anything  to  bring  the  injury  upon  himself,  in  the  respect 
that  he  naturally  excited,  angered,  and  provoked  Mr.  Leggett. 
That  is  for  you  entirely.  If  you  think  the  case  is  one  for  these 
added  or  extra  damages,  are  there  facts  and  circumstances 
which  will  mitigate  and  take  from  them?  But  remember,  gen- 
tlemen, above  all  things, — 1.  You  are  to  follow  the  rule  of  law 
I  have  given  you;  2.  You  are  to  ascertain  whether  Mr.  Leggett 
is  responsible;  3.  If  he  is  responsible,  you  are  to  give  the 
actual  damages,  no  matter  how  small  or  how  high;  4.  You 
are  to  ascertain  whether  the  circumstances  are  such  as  call 
for  added,  exemplary  damages,  and  if  so,  what  they  should 
be, — whether  they  should  be  anything,  whether  they  should 
be  mitigated  by  reason  of  any  provocation,  or  whether  they 
should  be  rendered  to  their  full  extent." 

We  think  this  charge  is  within  the  rule  best  supported  by 
the  authorities,  and  within  the  spirit  of  the  decisions,  so  far 
as  any  have  been  made  in  this  court,  inasmuch  as  the  arrest 
was  clearly  without  authority:  Allor  v.  Wayne  Co.  Auditors^ 
43  Mich.  76;  1  Russell  on  Crimes,  598,  600;  People  v.  Burtf 
51  Mich.  199;  People  v.  Haley,  48  Id.  495;  Drennan  v.  People,  10 
Id.  169;  Quinn  v.  Heisel,  40  Id.  576;  Way's  Case,  41  Id.  299; 
Commonwealth  v.  Carey,  12  Cush.  252.  As  to  exemplary  dam- 
ages, see  Detroit  Post  and  Tribune  Co.  v.  McArthur,  16  Mich. 
447;  Brushaber  v.  Stegemann,  22  Id.  266;  Fay  v.  Swan,  44  Id. 
544;  Elliott  v.  Van  Buren,  33  Id.  49;  20  Am.  Rep.  668;  Pat- 
terson V.  Chicago  etc.  Ry,  49  Mich.  191;  Ganssly  v.  Perkins,  30 
Id.  493;  Scripps  v.  Reilly,  38  Id.  10;  Welch  v.  Ware,  32  Id.  77; 
Johnston  v.  Disbrow,  47  Id.  59;  Druse  v.  Wheeler,  22  Id.  439; 
Friend  v.  Dunks,  37  Id.  25;  Evening  News  Ass'n  v.  Tryon,  42 
Id.  549;  36  Am.  Rep.  450;  Livingston  v.  Burroughs,  33  Mich. 
611;  Raynor  v.  Nims,  37  Id.  34;  26  Am.  Rep.  493;  Hamilton 
V.  Smith,  39  Mich.  222;  Tefft  v.  Windsor,  17  Id.  486;  Vander- 
pool  V.  Richardson,  52  Id.  336;  Van  Deusen  v.  Newcomer,  40  Id. 
90;  Hill  V.  Taylor,  50  Id.  549. 

All  that  was  proper  to  be  given  in  the  defendant's  requests 
to  charge  was  included  in  the  foregoing  instructions. 


June,  1886.]  Ross  v.  Legqett.  615 

It  is  the  complaint  of  the  learned  counsel  for  the  defend- 
ant that  the  court  directed  the  attention  of  the  jury  to 
damages  arising  from  injury  to  the  feelings,  when  discussing 
exemplary  damages,  as  well  as  when  charging  them  what 
constituted  actual  damages.  We  have  in  the  above  quota- 
tion from  the  charge  all  that  he  said  upon  the  subject  ex- 
cepted to  by  defendant's  counsel,  and  we  do  not  think  the 
exception  well  taken. 

It  is  of  little  consequence  by  what  name  the  damages  given 
are  called,  provided  the  case  is  one  involving  that  class  of  in- 
juries for  which  the  plaintiff  is  entitled  to  recover.  They  may 
be  called  "exemplary,"  "punitory,"  "vindictive,"  "compen- 
satory," or  "  added  "  damages.  The  important  question  always 
is,  in  every  case.  Was  the  character  of  the  wrong  sufifered,  or 
injury  sustained,  such  as  may  be  lawfully  atoned  for  or  com- 
pensated in  money? 

Actual  damages  are  those  which  the  injured  party  is  en- 
titled to  recover  for  wrongs  received  and  injuries  done  when 
none  were  intended.  Damages  beyond  these,  where  the  in- 
juries and  sufferings  were  intended,  or  occur  through  careless- 
ness or  negligence  amounting  to  a  wrong  bo  reckless  and  wan- 
ton as  to  be  without  palliation  or  excuse,  are  frequently  and 
properly  given,  and  have  been  variously  designated  by  the 
terms  above  mentioned.  The  first  are  measured  by  known 
and  well-defined  rules.  No  rule  can  be  laid  down,  properly 
measuring  or  limiting  the  damages  allowable  in  the  other 
class  of  cases,  except  they  must  not  be  oppressive,  or  such  as 
to  shock  the  common  sense  of  fair-minded  men;  and  they  are 
therefore  left  to  the  reasonable  discretion  of  the  jury.  A 
more  definite  rule  cannot  well  be  given  as  to  these,  as  what 
would  be  right  and  just  must  depend  entirely  upon  the  cir- 
cumstances of  each  particular  case. 

The  jury  by  their  verdict  found  the  defendant  guilty  of  the 
unlawful  acts  and  trespasses  to  the  person  and  feelings  of  the 
plaintiff  complained  of  in  his  declaration,  and  if  the  wrongs 
inflicted  by  such  unlawful  acts  were  not  intended,  the  lack 
of  such  intention  could  not  prevent  the  pain  and  suffering 
experienced  by  the  plaintiff  by  his  false  imprisonment,  or 
prevent  the  physical  discomfort  —  the  sense  of  shame,  mortifi- 
cation, outrage,  and  disgrace  —  inflicted  upon  and  endured 
by  the  plaintiff;  and  if  so,  they  were  but  the  natural  conse- 
quences of  the  injury  the  plaintiff  received  by  the  treatment 
of  the  defendant,  and  they  were  all  elements  to  be  taken  in 


% 


616  Boss  V.  LsaaETT.  [Mich. 

consideration  by  the  jury  in  determining  the  actual  damages, 
and  no  error  was  committed  by  the  court  in  so  charging 
the  jury.  It  is  no  objection  to  this  view  that  the  same  ele- 
ments, or  some  of  them,  must  be  considered  in  fixing  the 
amount  of  exemplary  damages,  when  such  are  given. 

Nowhere  in  the  record  or  briefs  of  counsel  do  we  find  the 
damages  awarded  in  the  case  claimed  to  be  excessive,  pro- 
vided the  plaintiflF's  declaration  should  be  found  sustained, 
and  that  question  is  settled  by  the  verdict  of  the  jury. 

The  case  as  presented  by  the  record  is  not  one  calling  for 
any  very  great  amount  of  refining  upon  this  subject,  and  we 
do  not  feel  called  upon,  under  the  facts  appearing  in  this  case, 
to  apply  any  technical  rules,  if  such  exist. 

The  record,  we  think,  shows  a  fair  trial,  and  no  error  is  com- 
mitted requiring  a  reversal,  and  the  judgment  must  therefore 
be  affirmed. 

Abbest  wtthout  Waerant,  when  It  may  be  Justified:  Brochway  v. 
Craviford,  67  Am.  Dec.  250,  and  note  253;  Wade  v.  Cliafee,  5  Am.  Rep.  572; 
Kenntdy  v.  State^  57  Id.  99;  Doering  v.  State,  19  Id.  669,  and  note  672; 
when  warrant  most  be  shown:  Hawkins  v.  Commonwealth^  61  Am.  Dec.  159, 
note;  State  v.  Garrett,  84  Id.  359;  Bright  v.  Patton,  60  Am.  Rep.  396. 

Propeb  Rkuest  roB  Causing  Abbest  on  Warbant,  Chaboino  Act 
KOT  Cbime,  but  a  trespass  only:  See  Kramer  v.  Lott,  88  Am.  Dec.  556,  and 
note  559. 

Otficeb  OB  Other  Febsok  Sebkinq  to  Sebvb  Void  Wabbant  Becomes 
Tbespasseb:  Commonvoealth  v.  Grotty,  87  Am.  Dec.  669. 

CioMFENSATOBT  Damaoes,  What  Thet  SHOULD  Inccude:  Pennsylvania 
R.  R.  Co.  T.  Books,  98  Am.  Dec.  229,  and  cases  collected  in  note  234;  Matthetoa 
V.  Warner,  26  Am.  Rep.  396;  Borland  ▼.  Barrett,  44  Id.  152;  Smith  v.  Bag- 
well, 45  Id.  12. 

PouoB  Officeb,  Aotino  in  Good  Faith  and  with  Reasonable  Cause, 
IS  not  Cbdiinallt  Liable  for  arresting  without  a  warrant  a  sober  man  for 
being  publicly  intoxicated:  Commomoealthv.  Cheney,  55  Am.  Rep.  448. 

Plea  Justittino  Abbest  without  Wabbant,  on  Suspicion  or  FsLon', 
SHOULD  Set  Fobth  the  grounds  of  the  suspicion:  Wade  v.  Chaffee,  6  Am. 
Bep.  572. 


June,  1886.]         Fbeehlinq  v.  Bresnahan.  617 

Feeehling  V.  Bresnahan. 

161  MICBIQAM,  540.] 

Cbkditobs  oakkot  Relt  xtfok  AiTT  Question  oy  Fraitd  in  dealing  with 
exempt  property. 

Undsb  Exemption  Laws,  Hcsband  must  be  Conolxtsivelt  Presttmed  to 
Reside  with  his  Familt,  where  they  occupy  the  old  home  with  hia 
consent,  and  there  has  been  no  separation  between  the  husband  and  wife; 
and  he  cannot,  by  his  voluntary  absence,  deprive  hia  family  of  their  rights 
in  the  enjoyment  of  the  household  property,  nor  will  it  cease  to  be  ex< 
empt  while  so  held. 

Replevin.    The  opinion  states  the  case. 

O,  A.  Wolf  and  H.  J.  Iloyt,  for  the  plaintiff  and  appellant. 

Edward  J.  Smith  and  Nelson  De  Long,  for  the  defendant. 

By  Court,  Campbell,  C.  J.  Defendant,  sheriff  of  Muskegon 
County,  levied  an  attachment  in  favor  of  George  E.  Dowling 
and  others  against  one  James  M.  Webster,  who  had  previously 
Kved  in  Montague,  in  that  county,  and  whose  family  still 
lived  there,  upon  a  considerable  amount  of  property,  all  or 
most  of  which  would  be  exempt  in  favor  of  a  resident  house- 
holder. Freehling  replevied  it,  under  a  transfer  from  Web- 
ster's wife  and  daughter,  who  themselves  claimed  under  a  bill 
of  sale  made  by  Webster  to  them  in  1883,  more  than  two  years 
before  the  levy.  Upon  the  back  of  this  paper  was  pasted  a 
certificate  of  acknowledgment  purporting  to  be  signed  by  an 
Illinois  justice,  September  19,  1885,  concerning  which  there 
was  no  proof.  The  execution  by  Webster  was  proved  to  have 
been  in  June,  1883,  and  this  was  not  contradicted  by  any 
evidence. 

Upon  the  trial,  a  principal  controversy  was  concerning 
Webster's  residence,  and  the  exempt  quality  of  the  goods. 
There  was  also  some  stress  laid  before  the  jury  upon  Freeh- 
ling's  want  of  title.  We  can  see  nothing  which  justified  the 
raising  of  any  question  before  the  jury  concerning  the  date  of 
Webster's  transfer,  whatever  may  have  been  its  nature.  The 
testimony  introduced  by  defendant  himself  showed  its  execu- 
tion in  1883.  There  was  nothing  to  throw  doubt  upon  this 
question.  Even  had  it  been  shown  that  Webster  acknowl- 
edged it  in  1885,  that  would  not  of  itself  impugn  it,  as  an  ac- 
knowledgment of  such  a  document  is  nugatory,  so  far  as  we 
have  any  information,  under  the  laws  of  Illinois.  The  certifi- 
cate does  not  prove  itself,  and  the  witnesses  who  proved  the 
paper  proved  its  earlier  completion.    It  is  not  uncommon  to 


61$  Fbeehlinq  v.  Bbesnauan.  [Mich. 

acknowledge  an  ezistlDg  paper  to  save  the  necessity  of  other 
proof. 

If  this  property  was  exempt,  then  the  defendant  could  not 
rely  on  any  question  of  fraud,  because  creditors  cannot  com- 
plain of  any  dealing  with  exempt  property.  Neither  is  it  im- 
portant whether  the  transfers  were  absolute  or  for  security, 
because  the  transferees  would  be  entitled  to  possession,  and 
could  transfer  possession  to  their  own  grantees  or  mortgagees. 
The  question  comes  back  to  the  exemption,  in  case  there  was 
any  right  in  Webster  left. 

There  was  no  dispute  but  that  he  once  resided  in  Montague, 
and  that  his  family  never  ceased  to  reside  there.  He  must, 
under  the  exemption  laws,  be  conclusively  presumed  to  reside 
where  his  family  live  with  his  consent,  where  there  has  been 
no  separation  between  husband  and  wife,  and  where  they  oc- 
cupy the  old  home.  He  could  not,  by  his  voluntary  absence, 
deprive  his  family  of  their  rights  in  the  enjoyment  of  the  house- 
hold property,  and  it  could  not  cease  to  be  exempt  while  so 
held.  The  wife,  as  well  as  the  husband,  had  recognized  legal 
rights  in  it,  and  creditors  cannot  intermeddle  with  it. 

This  question  of  residence  was  not  open  to  dispute  on  the 
evidence  as  it  stood. 

As  the  jury  were  allowed  to  treat  as  doubtful  what  we  think 
was  not  so  upon  the  undisputed  facts,  their  verdict  cannot  be 
upheld. 

The  judgment  must  be  reversed  and  a  new  trial  granted. 

Shebwood,  J.    I  concur  in  the  result. 


Husband  Livino  as  Boabdeb  tor  Skven  Ykabs,  Sbfakats  tbom  Witb, 
AND  NOT  CoJUTBXBXJnsQ  TO  HSB  SvFFOBT,  they  having  no  children,  is  not 
the  "head  of  a  family,"  within  the  statute  of  exemption:  Linton  v.  Crosby, 
41  Am.  Eep.  107. 

Whebb  Husband  Absconds,  and  his  Wifb  Continues  to  Cabbt  on 
HIS  Fabm,  she  becomes  the  head  of  the  family,  and  may  maintain  his  claim 
to  property  exempt  from  execution:  Frazkr  v.  Syas,  35  Am.  Kep.  466. 

Who  is  Head  or  Family,  and  What  Constitutes  Fahilt  within  mean« 
ing  of  exemption  laws:  See  Beaton  v.  Marshall,  99  Am.  Deo.  683,  and  not* 
684;  Calhoun  v.  Willianu,  34  Am.  Rep.  759. 


I 


June,  1886.]  Raub  v.  Smith.  619 

Raub  V.  Smith. 

[61  MICHIOAK,  648.1 

CovTKACt  Void  ukdkb  Statutk  of  Frauds  cannot  br  Ussd  iob  Ant 

PiTBPOSS,  and  ia  regarded  as  a  nullity. 
Not  only  is  Vkrbal  Conteact  for  Salb  of  Lands  Void,  but  a  verbal 

agreement  by  one  to  purchase  an  interest  in  lands  for  another  is  void. 
VxRBAL  Agreement  to  Form  Cofabtnershif  Involvino   Purohass  of 

Lands  for  the  purposes  of  the  copaiiinership  business  includes  a  contract 

for  the  sale  of  land,  and  is  void  under  the  statute  of  frauds. 

Assumpsit.    The  opinion  states  the  case. 

Charles  A.  WitJiey  and  Dallas  Boudeman,  for  the  defendants 
and  appellants. 

M.  Broton  and  J.  H.  Palmer,  for  the  plaintiff. 

By  Court,  Sherwood,  J.  This  is  an  action  of  a,8sump8it 
brought  by  the  plaintiff  against  the  defendants  to  recover 
damages  for  the  non-performance  of  an  alleged  contract  to 
enter  into  a  copartnership  with  the  plaintiff. 

The  facts,  as  the  plaintiff  states  them  in  his  declaration, 
are  substantially  as  follows:  — 

On  the  ninth  day  of  February,  1880,  the  plaintiff  had 
looked  over  280  acres  of  pine  land,  and  ascertained  that  there 
was  six  million  feet  of  pine  timber  thereon  then  growing, 
which  was  very  valuable,  and  had  the  descriptions  of  the  land, 
which  was  situated  in  the  county  of  Lake;  that  said  lands 
were  owned  by  the  Grand  Rapids  and  Indiana  Railroad  Com- 
pany, and  were  for  sale  at  fifteen  dollars  per  acre;  that  plain- 
tiff then  knew  the  location  of  the  lands,  and  the  defendants 
did  not;  that  plaintiff  had  a  steam  saw-mill,  which  he  used 
to  cut  timber  for  other  people;  that  at  the  same  time  the  de- 
fendants owned  in  the  said  county  of  Lake  a  quantity  of  pine 
timber,  consisting  of  about  one  million  two  hundred  thousand 
feet,  which  they  wished  to  have  manufactured  into  lumber; 
and  that  they  desired  to  contract  with  plaintiff  to  manufacture 
their  timber  into  lumber,  and  then  and  there  entered  into  an 
agreement  with  the  said  plaintiff,  in  substance,  as  follows:  — 

The  plaintiff  to  show  the  defendants  the  lands  he  had 
selected,  containing  the  six  million  feet  of  pine  timber,  and 
manufacture  for  the  defendants  into  lumber  the  one  million 
two  hundred  thousand  feet  of  pine  timber  they  owned,  at  $2.50 
per  thousand,  as  soon  as  he  could  reasonably  do  so;  and  if  the 
lands  containing  the  six  million  feet  of  pine  timber  were  as 
valuable  as  the  plaintiff  had  represented  them  to  the  defend- 


620  Raub  v.  Smith.  [Mich. 

ants,  then  it  was  agreed  that  the  plaintiflf  and  defendants 
should  form  a  copartnership,  and  that  the  defendants  should 
purchase  the  lands  shown  to  them  by  the  plaintiflf  of  the 
Grand  Rapids  and  Indiana  Railroad  Company,  the  owner 
thereof,  and  should  advance  the  purchase  price  (fifteen  dol- 
lars per  acre),  and  have  the  same  conveyed  to  the  plaintiflf 
and  defendants,  so  that  the  plaintiflf  should  own  one  third 
and  the  defendants  two  thirds  thereof;  said  plaintiff  to  pay  to 
defendants  for  his  share  by  manufacturing  the  timber  upon 
said  lands  to  be  purchased  into  lumber;  the  lumber  to  be  sold, 
and  the  plaintiff  to  have  one  third  of  the  profits,  and  the  de- 
fendants have  two  thirds,  and  the  losses,  if  any,  were  to  be 
borne  in  the  same  proportion. 

The  declaration  then  avers  that  each  of  said  parties  verbally 
agreed  to  perform  their  several  agreements  so  made  with  each 
other;  that  the  plaintiff  has  always  fulfilled  his  part  of  said 
contract,  and  has  manufactured  into  lumber  the  pine  timber 
standing  on  the  defendant's  land,  for  the  said  $2.50  per  thou- 
sand, as  soon  as  he  could  reasonably  do  so  after  making  the 
agreement;  and  showed  the  other  lands  to  the  defendants; 
and  that  they  were  as  valuable  as  he  represented  them  to  be 
to  the  defendants;  and  has  always  been  ready  to  do  the  saw- 
ing of  the  timber  grown  upon  said  lands  as  he  had  promised; 
but  that  the  defendants  refused  to  go  into  partnership  with 
the  plaintiff,  or  to  purchase  the  lands  upon  which  the  six  mil- 
lion feet  of  pine  timber  stood,  and  have  the  same  conveyed  to 
the  plaintiff,  so  that  he  would  have  and  own  an  undivided  one 
third  thereof;  but  purchased  the  lands,  and  took  the  title  to 
themselves,  and  afterwards  sold  the  same  for  eight  thousand 
dollars,  and  refused  to  allow  him  to  share  in  the  profits  thereof; 
that  the  profits  which  would  have  accrued  from  the  manufac- 
ture and  sale  of  the  timber  would  have  been  over  twenty  thon- 
Band  dollars  under  the  agreement  thus  made. 

The  defendants'  plea  was  the  general  issue,  with  notice  of 
set-off. 

The  cause  was  tried  in  the  Mecosta  circuit  before  a  jury,  and 
the  plaintiff  was  allowed  to  recover  a  judgment  for  the  sum  of 
five  thousand  dollars  damages. 

Defendants  bring  error. 

The  defendant's  contest  in  this  case  is  principally  upon  two 
points:  they  claim  that  the  contract  relied  upon  by  the  plain- 
tiff, and  for  the  breach  of  which  he  must  recover,  if  at  all, 
being  a  verbal  one,  is  within  the  statute  of  frauds;  that  the 


June,  1886.]  Raub  v.  Smith.  621 

foundation  of  plaintiff's  claim  is  for  the  sale  of  an  interest  in 
lands,  and  that  the  contract  therefor,  not  being  in  writing,  is 
void. 

Their  second  point  is,  that  the  rule  of  damages  laid  down 
by  the  court  is  incorrect,  and  not  applicable  to  the  facts  in  the 
case.  Of  course,  if  either  of  these  points  is  well  taken,  the 
judgment  must  be  reversed. 

The  language  of  the  statute  relied  upon  (How.  Stats.,  sec. 
6181)  is  as  follows:  "Every  contract  for  the  leasing  for  a 
longer  period  than  one  year,  or  for  the  sale,  of  any  lands,  or 
any  interest  in  lands,  shall  be  void,  unless  the  contract, 
or  some  note  or  memorandum  thereof,  be  in  writing,  and 
signed  by  the  party  by  whom  the  lease  or  sale  is  to  be  made, 
or  by  some  person  thereunto  by  him  lawfully  authorized  by 
writing." 

This  statute  has  frequently  been  before  this  court  for  con- 
struction, and  it  has  been  held  that  a  contract  which  is  void 
under  the  statute  of  frauds  cannot  be  used  for  any  purpose: 
Chamberlain  v.  Dow,  10  Mich.  319;  Hall  v.  Soule,  11  Id.  494; 
Holland  v.  Hoyt,  14  Id.  238;  Grimes  v.  Van  Vechten,  20  Id. 
410;  Scott  V.  Bush,  26  Id.  421;  12  Am.  Rep.  311;  Detroit  H. 
&  I.  R.  R.  Co.  V.  Forbes,  30  Mich.  176;  Hillebranda  v.  Nibbe- 
link,  40  Id.  646;  Sutton  v.  Rowley,  44  Id.  112.  Such  a  contract 
is  regarded  as  a  nullity. 

It  has  been  also  held  that  not  only  is  a  verbal  contract  for 
the  sale  of  lands  void,  but  that  a  verbal  agreement  by  one  to 
purchase  an  interest  in  lands  for  another  is  void:  Dwight  v. 
Cutler,  3  Mich.  573;  64  Am.  Dec.  105;  Bomier  v.  Caldwell,  8 
Mich.  463;  Hogsett  v.  Ellis,  17  Id.  364,  365;  Abell  v.  Munson, 
18  Id.  312;  100  Am.  Dec.  165;  Scott  v.  Bush,  26  Id.  418;  12 
Am.  Rep.  311;  De  Moss  v.  Robinson,  46  Mich.  62;  41  Am.  Rep. 
144;   Wetmore  v.  Neuberger,  44  Mich.  362. 

It  now  remains  to  consider  how  stands  the  case  of  the 
plaintiff  under  the  statute  and  the  foregoing  decisions  of  the 
court. 

The  action  is  to  recover  damages  for  refusing  to  perform  an 
agreement  to  form  a  copartnership  involving  the  purchase  of 
lands. 

The  contract  of  copartnership  which  is  set  up  in  the  decla- 
ration, and  which  it  is  averred  the  defendants  agreed  to  make, 
was  for  the  purchase  of  land  containing  a  large  quantity  of 
pine  timber,  from  which  the  manufacture  and  sale  of  lumber 
was  to  be  the  business  carried  on.    The  land  had  not  yet  been 


622  Raub  v.  Smith.  [Mich. 

purchased  when  the  agreement  sued  upon  is  alleged  to  have 
been  made,  nor  had  any  contract  yet  been  made  for  the  pur- 
chase thereof  from  the  owner.  By  the  terms  of  the  agreement 
the  defendants  were  to  negotiate  for  the  purchase  for  the  parties, 
take  the  title  in  their  names,  and  pay  the  purchase-money 
therefor;  the  defendants  to  be  the  owners  of  two  thirds  and 
the  plaintiff  one  third  of  the  property,  when  thus  purchased, 
and  the  plaintiff  to  reimburse  the  defendants  for  his  one  third 
of  the  purchase  price  in  his  sawing  and  converting  the  timber 
into  lumber  for  sale.  Clearly,  we  think  the  agreement  sued 
upon  included  a  contract  for  the  sale  of  land  which  was  not 
in  writing,  and  void  under  the  statute  of  frauds,  above  given. 

The  contract  for  the  purchase  of  the  land  was  included  in  the 
agreement  to  engage  in  the  copartnership,  and  is  made  the 
basis  thereof,  and  the  failure  of  the  defendants  to  perform  their 
undertakings  relating  thereto,  as  stated  in  the  agreement  sued 
upon,  constitutes  the  plaintiff's  sole  ground  for  the  damages 
he  claims  to  have  sustained. 

In  the  case  of  Levy  v.  Brush,  45  N.  Y.  589,  it  was  held,  where 
a  verbal  agreement  was  entered  into  between  the  plaintiff  and 
defendant,  by  which  the  latter  agreed  to  purchase  land,  and 
pay  therefor  from  his  own  funds  the  necessary  amount  for  that 
purpose,  for  the  joint  benefit  of  both,  the  plaintiff  to  reimburse 
one  half  the  money  so  paid,  the  deed  to  be  taken  in  the  names 
of  both,  the  defendant  having  made  the  purchase  and  taken 
the  contract  in  his  own  name,  and  refused  to  convey  one  half 
to  the  plaintiff,  that  no  action  would  lie  to  compel  the  execu- 
tion of  the  agreement;  that  the  case  was  within  the  statute  of 
frauds;  and  that  the  defendant  had  a  perfect  right,  both  at 
law  and  in  equity,  to  refuse  performance. 

In  Rawdon  v.  Dodge,  40  Mich.  698,  the  agreement  was  verbal 
that  Dodge  should  cause  to  be  conveyed  to  Rawdon  an  inter- 
est in  land  held  by  one  Sayles;  and  Mr.  Justice  Graves,  in 
delivering  the  opinion  of  the  court,  said:  "It  is  not  claimed 
that  written  evidence  was  not  necessary  to  show  the  agree- 
ment for  the  transfer  of  the  equity  of  redemption,  or  that  there 
was  any  such  evidence,  and  the  record  imports  that  no  proper 
writing  was  ever  made.  The  agreement  was,  that  an  interest 
held  by  Sayles  in  the  land  should  be  conveyed  to  Rawdon, 
and  the  transaction  was  within  the  words  and  policy  of  the 
statute:  How.  Stats.,  sees.  6179-6181.  The  fact  that  the  inter- 
est to  be  transferred  was  not  then  in  Dodge,  but  was  vested  in 
Sayles  could  make  no  difference.    It  was  a  contract  for  the 


June,  1886.]  Raub  v.  Smith.  623 

Bale  of  an  interest  in  land,  and  it  is  not  important  that  the 
title  then  resided  in  a  third  person."  See  also  Wright  v.  De 
Groff,  14  Mich.  164;  Scott  v.  Btish,  29  Id.  523;  Erhen  v.  LoriU 
lard,  19  N.  Y.  299;  Purcell  v.  Miner,  Coleman,  etc.,  4  Wall.  513. 

Other  authorities  might  be  cited,  but  we  think  the  above 
are  conclusive  upon  the  point,  and  show  clearly  that  the  agree- 
ment relied  upon  by  the  plaintiflF  is  within  the  statute  of 
frauds,  and  that  the  following  instruction  requested  by  the 
defendants'  counsel  should  have  been  given  to  the  jury,  viz.: 
"The  contract  upon  which  this  action  is  based,  and  which  is 
set  up  in  the  plaintiflf 's  declaration,  is  not  alleged  to  be  in 
writing,  and  therefore,  being  within  the  statute  of  frauds,  is 
of  no  force  to  bind  any  one,  and  it  is  your  duty  to  find  for  the 
defendants." 

There  is  no  occasion  for  considering  the  other  questions 
raised  in  the  case. 

The  judgment  must  be  reversed  and  a  new  trial  granted. 


AaBEKMSKT  TO  DiVIDB    PbOIITS    RkSULTINO    FROM    SaLB  OT    AnOTBSR's 

Fabm  13  NOT  WITHIN  Statutb  o»  Feaxtd8:  Bruce  V.  Hastings,  98  Am.  Dec. 
B92;  Lesley  v,  Bosson,  77  Id.  679;  Snyder  v.  WoJford,  63  Am.  Rep.  22;  Treat 
▼.  HUes,  60  Id.  858;  KUboum  v.  LaUa,  60  Id.  373;  but  compare  Id.  379,  note. 

Action  will  not  Lib  to  Recovbr  Consideration  Paid  upon  Oral 
AoRSEMBNT  for  the  purchase  of  lands,  if  the  vendor  is  willing  to  fulfill:  Oal- 
toay  V.  Shields,  27  Am.  Rep.  351;  Day  v.  WUson^  43  Id.  76. 

Pennsylvania  Statutb  o»  Frauds  dobs  not  Apply  to  Parol  Con- 
tracts for  sale  of  lands  in  another  state,  and  does  not  avoid  such  contracts, 
though  made  in  Pennsylvania:  Siegel  v.  Bobinson,  93  Am.  Deo.  776,  and  see 
note  776. 

Oral  Salb  or  Stuupaob,  Void  within  Statutb  or  Frauds,  may  bb 
Valid  as  a  license:  Spalding  v.  Archibald,  50  Am.  Rep.  253. 

Oral  Aqrbbmbnt  to  Let  Pubuc  Hall  roR  Four  SPECiriBD  Days  at 
Certain  Price  roR  Each  Day  is  not  Sale  or  Interest  in  Land,  and 
la  not  within  the  statute  of  frauds:  Johnson  v.  Wilkinson,  52  Am.  Rep.  698. 
8o  of  an  oral  agreement  with  a  mortgagor  of  lands  to  purchase  the  mortgage, 
■ell  the  moi-tgaged  property,  satisfy  the  mortgage,  and  pay  him  the  balance: 
MeOinnis  t.  Otok,  62  Id.  115. 


CASES 


XN  TBI 


SUPREME    COURT 


or 


MINNESOTA. 


Thomas  v.  Joslin. 

[96  MimfBSOTA,  L] 
JUBOMKNT    lOB    DkfKNDANT,    OK    MERITS,    IN    ACTION    lOB    SPBOmO    PbB- 

roRMANCB  of  a  contract  for  the  sale  of  real  estate,  ia  a  bar  to  another 
action  to  reform  the  same  contract,  and  to  enforce  it  as  reformed. 
Pabtt  is  Bound  by  his  Election  to  Sue  on  Wkitten  Conteact  as  exe- 
cuted, where  he  proceeds  to  trial  and  judgment  in  such  snit,  and  he 
cannot  thereafter  bring  an  action  to  reform  the  contract. 

Action  for  reformation  and  specific  performance  of  a  con- 
tract.   The  facts  appear  from  the  opinion. 

D.  A.  Secombe,  for  the  appellant. 

Wilson  and  Lawrence,  for  the  respondent. 

By  Court,  Vanderburgh,  J.  In  a  former  action  between 
the  same  parties,  brought  to  enforce  the  contract  in  contro- 
versy (30  Minn.  388),  it  was  held  by  this  court  that  the  letters 
of  defendant,  introduced  in  evidence  upon  the  trial,  author- 
ized the  agent  through  whom  the  contract  was  made  to  sell 
the  land  in  controversy,  subject  to  a  certain  lease  to  one  Mil- 
ler, and  that  the  written  contract,  though  otherwise  author- 
ized, was  not  in  that  particular  in  pursuance  of  the  authority 
conferred  by  the  defendant.  The  plaintiff  was  consequently 
defeated  in  that  action,  and  thereupon  he  commenced  this 
action  for  a  reformation  and  specific  performance  of  the  con- 
tract; and  he  is  now  met  by  the  objection  that  he  has  already 
had  his  day  in  court  as  respects  the  subject  of  this  litigation, 
and  that  the  former  judgment  is  a  bar  to  this  action.    We 

624 


Oct.  1886.]  Thomas  v.  Joslin.  625 

think  the  objection  well  founded,  and  that  the  plea  of  former 
adjudication  was  properly  sustained. 

It  is  manifest  that  the  substance  of  the  controversy  was  the 
agency  of  Whitney  and  the  extent  of  his  authority.  This  was 
disclosed  by  the  evidence  on  the  former  trial,  which  was  com- 
posed of  the  correspondence  of  the  agent  and  the  defendant. 
The  plaintiff  must  have  been  fully  advised  of  the  nature  of 
the  contract  authorized  by  defendant's  letters  when  the  former 
suit  was  brought;  and  it  appears  from  the  findings  of  fact  in 
this  case  that  "  it  was  a  part  of  the  agreement  between  the 
agent  and  plaintiff,  intended  to  be  embodied  in  the  written 
contract,  that  the  sale  of  defendant's  land  to  plaintiff  should 
be  subject  to  the  Miller  lease."  But  in  the  face  of  all  these 
facts,  plaintiff  elected  to  bring  his  action  upon  the  contract 
in  its  imperfect  form,  and  proceeded  to  trial  and  judgment 
therein.  There  was,  however,  in  fact,  but  one  contract  be- 
tween the  parties,  and  but  one  claim  or  right  upon  which  to 
base  a  recovery,  though  it  may  not  have  been  fully  evidenced 
by  the  writing.  This  claim  has  been  once  litigated,  and,  as 
defendant  contends,  finally  determined;  and  it  is  now  sought 
to  be  renewed  by  plaintiff  upon  a  reformation  of  the  contract. 
We  are  unable  to  see,  however,  why  the  matter  should  not  be 
held  to  be  res  adjudicata,  and  the  plaintiff  bound  by  his  elec- 
tion. The  new  issue  was  merely  incidental  to  the  main  cause 
of  action:  Winchell  v.  Coney,  27  Fed.  Rep.  482.  The  written 
contract  was  imperfect,  but  the  plaintiff  chose  to  rest  a  suit 
upon  it  as  it  was,  and  the  judgment  in  the  case,  until  set 
aside,  was  mutually  binding  upon  the  parties  to  it,  and  final 
as  respects  the  merits  of  plaintiff's  claim,  notwithstanding 
mistakes  and  omissions  in  the  proceedings,  or  the  failure  on 
the  part  of  either  party  to  make  a  full  presentation  of  his  case 
by  the  proper  allegations  and  proofs:  Thompson  v.  Myrich,  24 
Minn.  4,  11.  It  is  manifest  that  the  two  actions  could  not 
proceed  pari  passu  to  trial  and  final  judgment  in  the  same 
court,  and  that  the  plaintiff  in  such  case  would  be  compelled 
to  elect,  and  be  bound  by  his  election.  Neither  can  they  be 
so  prosecuted  successively:  Washburn  y.  Great  Western  Ins.  Co., 
114  Mass.  175;  Steinbach  v.  Relief  Fire  Ins.  Co.,  77  N.  Y.498; 
33  Am.  Rep.  655;  12  Hun,  640.  In  such  cases  the  plaintiff 
should  take  a  dismissal  in  the  nature  of  a  nonsuit  before  final 
submission  on  the  merits. 

The  former  suit  was  dismissed,  in  this  instance,  by  the  court, 
after  the  plaintiff's  case  was  submitted;  but  it  is  not  material 

Am.  St.  Bsr.,  Vol.  L — 40 


626  Thomas  v.  Joslin.  [Minn. 

that  the  Judgment  was  in  form  one  of  dismissal  if  it  was  in 
fact  determined  on  the  merits:  Boom  v.  St.  Paul  Foundry  Co.^ 
•33  Minn.  253.  It  is  claimed  by  the  defendant,  and  was  so 
tield  by  the  trial  court,  that  it  was  so  determined  as  upon  a 
final  submission  of  the  case;  but  as  the  question  is  not  raised 
or  argued  by  the  appellant,  we  do  not  consider  it  here. 
Judgment  affirmed. 

IiVhkn  Election  to  Pbosboute  One  Bemsdt  Baks  Resobt  to  Anothkk. 
—  A  party  having  a  right  to  choose  either  one  of  two  inconsistent  remedies, 
who,  with  full  knowledge  of  all  the  facts  in  the  case,  makes  deliberate  choice 
«{  one  mode  of  redress,  is  bound  by  his  election,  and  cannot  afterwards  re< 
sort  to  the  other:  Orme  v.  Broughton,  10  Bing.  533;  Ward  v.  Day,  4  Best  & 
S.  337;  Smith  v.  BaJcer,  L.  R.  8  C.  P.  350;  5  Moak's  Rep.  323;  Clough  v.  Lon- 
don etc.  R'y  Co.,  L.  R,  7  Ex.  26;  Thompson  v.  Howard,  31  Mich.  309;  MorrU 
V.  Bex/ord,  18  N.  Y.  552;  Bank  qfBeloU  v.  Beale,  34  Id.  473;  Bodermund  r. 
Clark,  46  Id.  354;  Mailer  v.  Tuaka,  87  Id.  166,  amrming  same  case,  9  Daly,  207; 
Strong  v.  Strong,  102  N.  Y.  69;  Wilmot  v.  Richardson,  2  Keyes,  519;  Cheese- 
man  V.  Slurges,  9  Bosw.  246;  Wright  v.  Pierce,  4  Hun,  351;  Goss  v.  Maiher, 
2  Lans.  283.  Said  Graves,  C.  J.,  in  delivering  the  opinion  of  the  court  in 
Thompson  v.  Howard,  31  Mich.  312:  "  A  man  may  not  take  contradictory  po- 
sitions, and  where  he  has  a  right  to  choose  one  of  two  modes  of  redress,  and 
the  two  are  so  inconsistent  that  the  assertion  of  one  involves  the  negation  or 
repudiation  of  the  other,  his  deliberate  and  settled  choice  of  one,  with  knowl- 
edge or  the  means  of  knowledge  of  such  facts  as  would  authorize  a  resort  to 
each,  will  preclude  him  thereafter  from  going  back  and  electing  again."  And 
in  Orme  y.  Broughton,  10  Bing.  538,  Tindal,  C.  J.,  said:  "After  bringing  an 
action  in  which  the  grievance  alleged  is  the  loss  sustained  by  breach  of  the 
contract,  I  think  it  would  be  impossible  to  bring  a  second  action,  or  to  resort 
to  any  other  means  to  enforce  the  contract,  inasmuch  as  the  first  action  is  to 
be  deemed  an  election  as  to  the  remedy  sought."  This  rule  applies  only 
where  the  remedies  ore  inconsistent,  as  where  one  action  is  founded  on  an 
affirmance  and  the  other  upon  the  disaffirmance  of  a  voidable  contract  or 
sale  of  property:  Connihan  v.  Tliompson,  111  Mass.  270.  Where  the  remedies 
are  consistent  and  concurrent,  the  party  may  prosecute  as  many  remedies  as 
lie  has:  Bowen  v.  MandeviUe,  95  N.  Y.  237.  In  delivering  the  opinion,  of  the 
court  in  Connihan  v.  Tliampson,  111  Mass.  271,  Wells,  J.,  said:  "It  is  con- 
tended that,  by  commencing  an  action  at  law  in  which  the  land  in  question 
was  specially  attached,  the  plaintiff  waived  his  remedy  in  equity.  But 
the  remedy  in  equity,  by  compelling  specific  performance,  and  that  at  law  in 
ilamages  for  the  breach,  are  both  in  affirmance  of  the  contract.  They  are 
alternative  remedies,  but  not  inconsistent;  and  remedy  in  both  forms  might 
l)e  sought  in  one  and  the  same  action.  If  the  plaintiff  institute  separate  ac- 
tions, he  cannot  carry  both  to  judgment  and  satisfaction.  He  may  be  com- 
pelled, by  order  of  the  court,  at  any  stage  of  the  proceedings  to  elect  which 
he  will  further  prosecute.  But  the  mere  commencement  or  pendency  of  one 
will  not  bar  the  other  or  defeat  the  action. "  So  the  mere  bringing  of  an 
«ction  for  the  price  of  goods  sold  is  not  a  binding  election  of  remedies,  or  a 
wadver  of  a  right  to  rescind  the  sale  on  the  ground  of  fraud,  unless  the 
action  was  brought  with  knowledge  of  the  fraud:  Equitable  Co-operaiive 
Foundry  Co.  v.  HerseCt  103  N.  Y.  25.     And  in  Hays  v.  Midas,  104  Id.  602, 


Oct.  1886.]  Thomas  r.  Joslin.  627 

affirming  39  Hun,  460,  where  a  vendor  brought  an  action  to  recover  the  price 
of  goods  sold,  and  obtained  an  attachment  therein  on  the  gronnd  that  the 
defendant  had  removed  and  disposed  of  his  property  with  intent  to  defraud 
his  creditors,  which  was  levied  on  property  of  the  defendant,  but  nothing  was 
obtained  by  plaintiff  under  the  attachment,  and  said  action  was  subsequently 
discontinued,  by  order  of  the  court,  on  notice  to  the  defendant,  it  was  held 
that  plain tifif  was  not  precluded  thereby  from  rescinding  the  sale  on  the 
gronnd  that  it  was  induced  by  fraud  on  the  part  of  the  vendee,  and  from 
bringing  an  action  to  recover  the  goods  sold,  in  the  absence  of  proof  that  the 
vendor  brought  the  first  action  with  knowledge  of  the  fraud.  But  where  the 
plaintiffs  sued  the  defendant  on  a  contract  at  law,  and  a  few  days  before 
the  trial  discovered  facts  amounting  to  a  fraudulent  concealment  by  the  de- 
fendant, but  proceeded  nevertheless  to  take  a  verdict  for  the  amount  claimed 
on  which  judgment  was  entered  up,  and  they  afterwards  filed  a  bill  in  equity 
for  relief  against  the  contract  on  the  ground  of  fraud,  it  was  held  that  by 
going  to  trial  and  taking  judgment  the  plaintiffs  had  made  their  election  of 
their  remedy  at  law,  and  the  remedies  at  law  and  in  equity  being  inconsis- 
tent, they  were  bound  by  that  election:  Sanger  v.  Wood,  3  Johns.  Ch.  416. 

Where  Party  having  Right  to  Elect  between  Action  in  Tort  ob 
IH  Contract  waives  the  tort  and  sues  upon  the  contract,  he  cannot  after- 
ward sue  in  tort,  but  is  bound  by  his  election,  and  confined  to  that  mode  of 
redress  which  he  first  chooses:  Smith  v.  Baker,  L.  R.  8  C.  P.  350;  5  Moak'a 
Rep.  323;  Butler  v.  Hildretli,  5  Met.  49;  JeweU  v.  Petit,  4  Mich.  508;  Thomp- 
mm  V.  Howard,  31  Id.  309;  Nield  v.  Burton,  49  Id.  53;  Rodermund  v.  Clark,  46 
N.  Y.  350;  Acer  v.  HotcMdaa,  97  Id.  395;  Benedict  v.  National  Bank  qf  the 
CommonweaUli,  4  Daly,  171;  Goss  v.  Mather,  2  Lans.  283;  Kinney  v.  ATier- 
nan,  2  Id.  492.  In  Smith  v.  Baker,  supra,  the  trustee  of  a  bankrupt  ap- 
plied to  the  court  of  bankruptcy  to  declare  a  bill  of  sale,  made  by  the 
bankrupt  previously  to  the  bankruptcy,  fraudulent  and  void  as  against 
himself  as  trustee.  The  court  made  the  order  asked  for,  and  the  as- 
signee paid  over  the  proceeds  of  the  sale.  It  was  held  that  the  trustee 
could  not  afterwards  bring  an  action  of  trover  against  the  assignee  to  re- 
cover the  difference  between  the  value  of  the  goods  and  the  amount  realized 
from  the  sale.  In  Butler  v.  IJildreth,  supra,  it  was  decided  that  where  an 
assignee,  knowing  all  the  facts  of  the  case,  brought  an  action  against  the 
vendee  to  whom  the  vendor  had  sold  goods  in  fraud  of  his  creditors,  on  a 
note  given  by  such  vendee,  and  secured  the  demand  by  an  attachment  on  his 
property,  ho  thereby  so  far  affirmed  the  sale  and  waived  his  right  to  disaffirm 
it  that  ho  could  not,  by  discontinuing  that  action  and  demanding  the  goods, 
entitle  himself  to  maintain  an  action  of  trover  against  the  vendee,  on  hia 
refusal  to  return  them.  In  Thompson  v.  Ilotoard,  supra,  the  plaintiff  brought 
an  action  in  assumpsit  to  recover  for  wages  of  his  minor  son,  proceeded  to 
trial,  and  submitted  his  case  to  the  jury,  who  disagreed.  lie  then  discon- 
tinued that  action  and  brought  another  action  for  damages  for  enticing  away 
and  harboring  said  son;  but  the  court  held  that  he  had  made  an  election  to 
sue  in  contract,  and  could  not  maintain  an  action  in  tort.  In  Benedict  v.  Na- 
tional Bank  of  Hit  CominonwealUi,  supra,  the  plaintiff,  having  been  induced  to 
make  a  loan  on  the  security  of  forged  bonds,  after  discovering  the  fraud, 
■ued  on  the  contract  and  attached  the  money  of  the  borrowers  standing  to 
their  credit  in  bank;  but,  proceedings  in  bankruptcy  having  been  taken 
•gainst  the  defendants  in  that  suit,  ho  discontinued,  and  brought  an  action 
in  tort  against  the  bankrupt  and  his  assignee  in  l>an](raptcy,  claiming  that 
the  money  in  bank  was  the  identical  money  obtained  from  him  by  fraud,  and 


628  Thomas  v.  Joslin.  [Minn. 

that  he  was  entitled  to  it  as  owner.  It  was,  however,  held  that,  by  the  pro- 
ceedings in  the  first  suit,  the  plaintiff  had  elected  to  affirm  the  contract,  and 
was,  therefore,  barred  from  bringing  a  second  suit  founded  in  tort.  So,  on 
the  other  hand,  where  a  plaintiff  elects  to  disaffirm  the  contract  and  sue  in 
tort,  he  cannot  thereafter  affirm  the  contract  in  part,  and  sue  thereon:  WiU 
V.  Broumstein,  35  Hun,  68.  But  the  vendor  of  goods,  the  sale  and  delivery 
of  which  have  been  induced  by  fraud  on  the  part  of  the  vendee,  does  not, 
by  an  effort  to  retake  the  entire  property,  which  is  successful  in  part  only, 
lose  the  right  to  pursue  the  vendee  for  the  value  of  the  unfound  portion, 
nor  is  the  effort  a  defense  to  an  action  to  recover  possession  against  one  in 
whose  hands  a  part  is  found:  Powera  v.  Benedict,  88  N.  Y.  605;  Heraey  v. 
Benedict,  15  Hun,  282.  In  MoUer  v.  Truaka,  87  N.  Y.  166,  affirming  same 
case,  9  Daly,  207,  the  plaintiff  sold  goods  to  Valk  Brothers,  and  the  latter 
sold  them  to  the  defendant,  Tuska.  Valk  Brothers  were  at  the  time  of  the 
sale  insolvent,  and  within  a  few  days  after  went  into  bankruptcy.  The 
plaintiffs  brought  an  action  to  recover  the  goods  on  the  ground  that  the  sale 
was  induced  by  fraud,  in  which  the  defendant  participated.  After  the  com- 
mencement of  this  action,  the  plaintiffs  proved  their  debt  in  the  bankruptcy 
proceedings,  and  received  their  dividend,  but  after  doing  so,  they  returned 
the  dividend  and  had  their  claim  canceled.  The  court  held  that  they  were 
not  precluded  by  what  they  had  done  from  maintaining  their  action. 

What  is  Evidence  of  Election.  —  Any  decisive  act  of  affirmance  or  dis- 
affirmance of  a  voidable  contract  or  sale,  done  with  knowledge  of  the  facts, 
is  evidence  of  election.  And  the  bringing  of  a  suit  is  such  a  decisive  act: 
Kimball  v.  Cunningham,  4  Mass.  502;  Connihan  v.  Thompaon,  111  Id.  270; 
Sanger  v.  Wood,  3  Johns.  Ch.  416;  Morria  v.  Beaford,  18  N.  Y.  552;  Roder- 
mund  v.  Clark,  46  Id.  356;  Moller  v.  Tuska,  87  Id.  166.  Wells,  J.,  in  deliv- 
ering the  opinion  of  the  court  in  ConnUiany.  Thompaon,  eupra,  said:  "The 
defense  of  waiver  by  election  arises  when  the  remedies  are  inconsistent,  as 
where  one  action  is  founded  on  an  affilrmance,  and  the  other  upon  the  dis- 
affirmance of  a  voidable  contract  or  sale  of  property.  In  such  cases  any 
decisive  act  of  affirmance  or  disaffirmance,  if  done  with  knowledge  of  the 
facts,  determines  the  legal  rights  of  the  parties  once  for  all.  The  institution 
of  a  suit  is  such  a  decisive  act;  and  if  its  maintenance  necessarily  involves 
an  election  to  affirm  or  disaffirm  a  voidable  contract  or  sale,  or  to  rescind 
one,  it  is  generally  held  to  be  a  conclusive  waiver  of  inconsistent  rights,  and 
thus  to  defeat  any  action  subsequently  brought  thereon."  It  is  also  held 
that  charging  a  party  in  an  execution  at  law,  after  a  conmiission  in  bank- 
ruptcy has  issued,  is  an  election  to  take  the  remedy  at  law,  and  the  party 
must  abide  by  it,  and  cannot  afterwards  proceed  under  the  commission:  Ihe 
parte  Warder,  3  Brown  Ch.  191;  Ex  parte  Cator,  3  Id.  216. 

Paety  cannot  Maintain  Bill  in  Equity  to  Reform  Contbact  after 
he  has  brought  an  action  at  law  upon  the  contract  as  it  is,  and  been  defeated 
in  that  action.  By  bringing  his  action  upon  the  contract  he  has  elected  to 
affirm  it,  and  is  bound  by  his  election:  Thvying  v.  Oreai  Weatern  Ina.  Co., 
Ill  Mass.  93;  Waahbum  v.  Great  Weatern  Ina.  Co.,  114  Id.  175;  4  Ins.  Law  J. 
112;  Steinbach  v.  BeUt^f  Fire  Ina,  Co.,  77  N.  Y.  498;  affirming  same  case, 
12  Hun,  640;  33  Am.  Rep.  655.  In  delivering  the  opinion  of  the  court  in 
Waahbum  v.  Cfreat  Western  Ina.  Co.,  supra.  Gray,  C  J.,  said:  "We  are  of  the 
opinion  that  the  plaintiff,  by  bringing  an  action  at  law  upon  the  policy  in  its 
original  form,  and  prosecuting  that  action  to  trial,  verdict,  and  judgment, 
upon  the  issue  whether  he  had  complied  with  the  warranty  contained  therein, 
conclusively  elected  to  consider  it  as  expressing  the  true  contract  between 


Oct.  1886.]     Clapp  v.  Minneapolis  etc.  Railway  Co.        G29 

himself  and  the  insurance  company,  and  to  abandon  any  attempt  to  have  ib 
reformed  in  equity.  His  bill  does  not  assert  an  equitable  right  which, 
although  it  could  not  have  been  secured  to  him  in  the  action  at  law,  might 
co-exist  with  the  right  asserted  by  him  in  that  action;  but  proceeds  on 
grounds  wholely  inconsistent  with  those  maintained  by  him  in  the  action  at 
law,  and  seeks  to  show  that  his  contract  with  the  defendants  was  essentially 
different  from  that  which  he  alleged,  and  submitted  to  the  final  judgment  of 
the  court,  in  that  action.  If  the  actual  contract  was  as  alleged  in  the  bill 
in  equity,  the  issue  tried  at  law  was  but  a  moot  question,  having  no  bearing 
upon  the  rights  of  the  parties." 


Clapp  v,  Minneapolis  and  St.  Louis  Railway  Co. 

186  Minnesota,  6.1 

In  Action  tor  Death  from  Accident  Caused  by  Broken  Switch-rail, 
Evidence  of  Similar  Accidents  at  the  same  switch  while  the  rail  was 
in  substantially  the  same  condition  is  admissible. 

Employee  of  Railroad  Company  does  not  Assume  Risk  of  Insufficiency 
OF  Switch-rail  to  support  the  weight  of  rolling  stock  used  on  the  road, 
where  it  does  not  appear  that  he  knew  of  the  defective  condition  of  the 
switch,  the  liability  of  the  rail  to  break,  or  the  special  danger  from  that 
cause  likely  to  arise  from  running  his  engines  over  it. 

Real  Ground  of  Party's  Objection  to  Charge  to  Jury  must  be  fairly  dis- 
closed to  the  court,  at  the  time  it  is  given;  otherwise  the  objection  will 
be  disregarded. 

Court  may  Instruct  Jury  to  Consider  Age,  Health,  CiAPACiTY  to  Earn 
Money  of  Person  Killed,  and  the  injury  to  his  business  as  disclosed 
by  the  evidence,  in  an  action  brought  for  the  benefit  of  the  widow  and 
next  of  kin,  to  recover  damages  for  injuries  causing  death. 

Action  brought  by  the  plaintiff,  as  the  administratrix  of  her 
deceased  husband,  to  recover  damages  for  the  alleged  negli- 
gence of  the  defendant,  resulting  in  the  death  of  her  intestate, 
who  was  a  locomotive-engineer  in  the  defendant's  employ.  The 
plaintiff  recovered  a  verdict  for  two  thousand  five  hundred  dol- 
lars. A  new  trial  was  refused,  and  the  defendant  appealed. 
Other  facts  appear  from  the  opinion. 

J.  D,  Springer,  for  the  appellant. 

W.  E.  Bramhall  and  J.  H.  Parker,  for  the  respondent 

By  Court,  Vanderburgh,  J.  The  alleged  cause  of  the  ac- 
cident which  resulted  in  the  death  of  plaintiff's  intestate  was 
a  defective  switch,  and  broken  rail  connected  therewith.  Af- 
ter the  accident,  the  rail  in  question  was  found  broken  and 
displaced.  The  jury  found  specially,  upon  sufficient  evidence, 
that  the  rail  was  cracked  the  day  before  the  accident  occurred, 
and  the  evidence  in  plaintiff's  behalf  tended  to  show  that  the 


k 


630  Clapp  r.  Minneapolis  etc.  Railway  Co.       [Minn. 

defendant  had  notice  of  its  condition  in  time  to  have  replaced 
it  with  a  sound  rail. 

•  1.  The  court  allowed  the  plaintiff  to  prove  that  engines  had 
previously  run  off  the  track  at  the  same  place,  both  before  and 
after  the  time  in  question.  But  the  evidence  also  tended  to 
show  that,  when  such  accidents  occurred,  the  switch  was  in 
substantially  the  same  condition  as  in  this  instance  as  respects 
the  particular  defects  complained  of,  except  that  it  appeared, 
by  the  evidence  of  one  witness,  that  the  engine  (observed  by 
him)  ran  off  the  track  because  the  switch  was  misplaced,  so 
that  the  admission  of  his  evidence  proved  to  be  error  without 
prejudice.  The  remaining  evidence  received  upon  the  same 
point  was  properly  admissible  under  the  rule  laid  down  upon 
the  former  appeal  herein:  Sub  nomine  Morse  v.  Minneapolis 
and  St.  Louis  Railway  Co.,  30  Minn.  465. 

2.  The  question  propounded  to  the  witness  Sargent,  in  ref- 
erence to  the  character  and  safety  of  the  switch  in  question, 
in  the  condition  in  which  it  was  shown  to  be,  was  proper.  He 
was  shown  to  be  an  expert,  and  competent  to  express  an  opin- 
ion on  the  subject. 

3.  The  witness  Guerin,  also  an  expert,  was  permitted, 
against  defendant's  objection,  to  testify  that  the  iron  rail  ir. 
question  was  too  weak  to  support  the  engines  and  rolling  stock 
used  on  the  road.  This  is  assigned  for  error,  on  the  ground 
that  it  was  immaterial  and  irrelevant,  and  that  the  deceased 
must  be  presumed  to  have  assumed  the  risk  of  the  insuflB- 
ciency  of  the  rail.  It  does  not  appear,  however,  that  he  knew 
of  the  defective  condition  or  operation  of  the  switch,  or  the  lia- 
bility of  the  rail  to  break,  or  the  special  danger  from  such  cause 
likely  to  arise  from  running  two  engines,  coupled  together, 
over  it.  It  was  the  duty  of  the  defendant  to  use  reason- 
able diligence  to  furnish  a  safe  road-bed  and  instrumentali- 
ties for  its  employees,  and  we  cannot  assume  that  operatives, 
who  are  not  charged  with  any  responsibilities  in  reference  to 
the  condition  of  the  road-bed  and  switches,  assume  the  risk  o(' 
particular  defects,  unless  it  appears  that  they  are  advised  oi 
the  facts  and  dangers.  The  evidence  was  relevant  to  the 
issues  which  embraced  the  sufficiency  of  Ihe  switch  and  rail 
in  question. 

4.  As  the  court,  in  its  charge,  expressly  confined  the  atten- 
tion of  the  jury  to  the  evidence  tending  to  prove  negligence  on 
the  part  of  the  company  in  the  particulars  above  referred  to, 
it  was  not  error  to  instruct  them  that,  if  they  found  from  the 


Oct.  1886.]    Clapp  v.  Minneapolis  etc.  Railway  Co.        631 

evidence  that  the  negligence  of  defendant  caused  the  death  of 
plaintiff's  intestate,  they  ought  to  find  for  the  plaintiff.  The 
attention  of  the  court  was  particularly  directed  to  the  plain- 
tiff's charge  of  negligence,  and  no  suggestion  of  contributory 
negligence,  if  any  there  was,  appears  to  have  been  made  to 
the  court  by  the  defendant;  so  that,  if  this  was  intended  to  be 
the  real  point  of  defendant's  objection  to  the  charge,  it  was  not 
fairly  disclosed  to  the  court. 

5.  The  court  also  charged  that,  in  determining  the  question 
of  damages,  the  jury  might  take  into  consideration  the  age 
of  Henry  L.  Morse  when  killed,  the  injury  to  his  business,  his 
capacity  to  earn  money,  his  health,  and  general  condition  in 
life,  as  they  should  find  from  the  evidence  before  them.  The 
point  of  defendant's  objection  to  these  instructions,  as  made 
upon  the  argument,  is,  that  these  were  questions  which  might 
properly  have  been  considered  had  Morse  himself  survived, 
and  brought  an  action  for  personal  injuries  which  disabled 
him,  but  were  improper  for  the  jury  to  consider  in  this  action. 
These  matters  were,  however,  for  the  jury,  in  considering  the 
reasonable  expectation  of  pecuniary  benefit  which  she  might 
reasonably  have  been  expected  to  receive  in  case  he  had  but- 
vived,  and  her  consequent  loss  and  damage  upon  his  decease. 
We  do  not  think  the  jury  were,  in  fact,  misled;  but  if  the  de- 
fendant deemed  additional  instruction  as  to  the  correct  rule  of 
damages  important,  or  that  the  court  should  have  been  more 
explicit  in  its  charge,  counsel  should  have  directed  the  atten- 
tion of  the  court  to  the  matter  at  the  time. 

We  see  no  ground  for  a  new  trial,  and  the  order  denying  it 
should  be  affirmed. 


Whx9  Servant  Assumes  Risk  of  Defeots  ik  MACHHtiaT  ob  Apfu* 
AKCXS:  See  Ifartia  Co.  v.  Basa,  60  Am.  Rep.  152;  Riee  ▼.  King  Phillip  MUU, 
69  Id.  80;  Strobh  v.  Chicago  etc.  R'y  Co.,  59  Id.  456;  Texcta  etc,  R'y  Co,  v. 
Bradford,  59  Id.  639;  Thorpe  v.  Miaaouri  Pacific  R'y  Co.,  58  Id.  120;  SckuUt 
T.  adcago  4e  N.  W.  R.  R.  Co.,  58  Id.  881;  Jonea  v.  Florence  Mfg.  Co.,  57  Id. 
269;  Broaaman  v.  Leldgh  V.  R.  R.  Co.,  57  Id.  479;  Bajtu  v.  Syracuaeetc  R.  R. 
Co.,  57  Id.  723;  Bryant  v,  Burlington  etc.  R'y  Co.,  55  Id.  275;  Sweeney  v.  Ber^ 
lin  <k  J.  E.  Co.,  54  Id.  722;  KeUy  v.  AIAjoU,  53  Id.  292;  Hooper  v.  ColunMa 
etc  R.  R.  Co.,  53  Id.  691;  Leary  v.  Beaton  <t  A.  R.  R.,  62  Id.  733;  Afaruifao 
luring  Co.  v.  Morriaaey,  48  Id.  669;  Misaouri  Furnace  Co.  v.  Abend,  47  Id-  425; 
Oreenev.  MinneapoUa  etc.  R'y  Co.,  47  Id.  785;  Atlanta  Cotton  Factory  Co.  r. 
Speer,  47  Id.  750;  Flynn  v.  Kanaaa  City  etc.  R.  R.  Co.,  47  Id.  9Q;  Hathawtji 
v.  Michigan  C.  R.  R.  Co.,  47  Id.  569;  Cowlea  v.  Riclimond  Je  D.  R.  R.  Co.,  37 
Id.  620;  KeUey  v.  Silotr  Spring  Co.,  34  Id.  615;  Baltimore  <6  0.  R.  R.  Co.  r. 
Strieker,  34  Id,  291;  Smith  v.  St.  Louia  etc  R'y  Co.,  33  Id.  484;  Lovejoy  v. 
BoUon  A  L.  R.  R.  Co.,  28  Id.  206;  MuUan  t.  Philadelpfiia  etc  Co.,  21  Id.  2; 


632  CoLMAN  V.  GooDNow.  [Minn. 

Ladd  V.  yew  Bedford  B.  R.  Co.,  20  Id.  331;  OQ)Son  v.  Erie  Jt'y  Co.,  20  Id. 
652;  Chicago  (b  N.  W.  R'y  Co.  v.  Taylor,  18  Id.  626;  Pattersm  v.  PiOsburg  A 
C.  R.  R.  Co.,  18  Id,  412;  lOinoia  C.  R.  R.  Co.  v.  Welch,  4  Id.  693;  Columbus 
etc  R'y  Co.  v.  Arnold,  99  Am.  Dec.  615,  note  626,  where  other  cases  in  that 
series  are  collected. 

ObJBCTIONS    to    ChABOB    to    JtTKT,   WHEN  AND  HOW  TO  BB    TaKBN:    See 

Strohn  v.  Detroit  etc.  R.  R.  Co.,  99  Am.  Dec.  114,  note  132,  where  this  subject 
is  discussed,  and  other  cases  in  that  series  are  collected. 

EviDENCB  OF  Former  Accidents,  Admissibilitt  of:  See  Parker  v.  Port- 
land Publishing  Co.,  31  Am.  Eep.  262;  City  qf  Chicago  v.  Powers,  89  Am.  Dec 
418,  note  421,  where  other  cases  in  that  series  are  collected. 

Measure  of  Damaqes  fob  Injxtrt  CAUsiNa  Death:  See  Mansfield  Coal 
A  C.  Co.  V.  McEnery,  36  Am.  Rep.  662;  RocJ^ford  etc.  R.  R.  Co.  v.  Delane^,  25 
Id.  308;  Ihl  y.  FoHy-second  Street  etc.  R.  R.  Co.,  7  Id.  450;  O'Mara  r.  Hud- 
ton  River  R.  R.  Co.,  88  Am.  Deo.  61,  note  65. 


CoLMAN   V.    GoODNOW. 
[86  Minnesota,  9.] 

<hrx  Who  Fcbnishes  Matkrtat.  for  Bxtildino  Ebected  on  Villaoi 
Lot,  under  a  contract  with  parties  in  possession  of  the  lot,  acquires 
a  mechanic's  lien  on  the  building  and  lot,  although  the  title  to  the  lot 
was,  at  the  date  of  the  contract,  in  a  third  person,  who  conveyed  the 
same,  after  a  part  of  the  material  was  furnished,  to  one  of  the  parties 
to  the  contract,  to  whom  the  other  party  at  the  same  time  transferred  his 
interest.  The  acquisition  of  the  title  united  in  the  party  acquiring  it  the 
ownership  of  the  house  and  lot,  and  the  lien  rests  upon  his  interest  in 
both,  and  he  is  not  permitted  to  defeat  it  by  setting  up  title  in  a  third 
person  previous  to  that  date. 

CJladi  of  Lien  not  Attested  by  Seal  of  Officer  before  Whom  It 
WAS  Sworn  to,  within  the  statutory  time,  is  insufficient  to  preserve  the 
lien. 

Action  to  enforce  mechanic's  lien.  The  opinion  states  the 
case. 

Andrew  C.  Dunn,  for  the  appellant. 

Daniel  Rohrer,  for  the  respondents. 

By  Court,  Vanderburgh,  J.  The  plaintiflf  furnished  ma- 
terial for  the  erection  of  the  building  mentioned  in  the  com- 
plaint, under  the  contract  with  the  defendants  as  therein  al- 
leged. The  last  of  the  materials  for  and  used  in  the  erection 
of  such  building  under  the  contract  with  defendants  was 
furnished  on  or  about  December  16,  1880. 

By  the  terms  of  the  contract,  the  building  was  to  be  erected 
for  the  defendants  on  the  village  lot  described  in  the  com- 


Oct.  1886.]  CoLMAN  V.  GooDNow.  633 

plaint,  and  it  was  accordingly  so  erected  thereon  by  them. 
The  building  was  commenced  in  October,  1880,  and  they  were 
in  the  actual  possession  of  the  premises,  and  were  jointly  in- 
terested in  the  contract  and  building,  until  the  twenty-third 
day  of  November  following,  when  the  defendant  Craig  sold  and 
transferred  his  interest  to  the  defendant  Goodnow,  who  went 
on  and  completed  the  building.  At  the  time  the  contract  was 
made  they  had  not  acquired  title  to  the  land,  but  the  same 
was  owned  by  one  Pease,  who  conveyed  the  same  to  the  de- 
fendant Goodnow  at  the  date  last  mentioned.  "Whether  the 
defendants  before  this  time  were  in  possession  of  the  premises 
under  a  contract  with  Pease  is  not  found.  It  does  not  appear 
that  they  were  trespassers,  and  it  will  be  presumed,  the  con- 
trary not  appearing,  that  they  were  rightfully  in  possession, 
and  had  some  right  upon  or  interest  in  the  land  sufficient  to 
uphold  a  lien  upon  the  building:  Phillips  on  Mechanics' . 
Liens,  sec.  187.  The  lien  extends  to  the  joint  and  several  in- 
terests in  the  building  and  land  of  the  persons  who  jointly 
ordered  or  contracted  for  the  materials  furnished  for  the  build- 
ing. It  is  immaterial,  therefore,  that  Craig  transferred  his  in- 
terest to  Goodnow;  and  as  the  question  of  the  validity  of  the 
title  is  not  in  issue,  in  the  absence  of  any  adverse  claims,  it 
is  also  immaterial  that  the  defendant  Goodnow  acquired  the 
legal  title  after  the  lumber  had  been  partly  furnished. 

The  acquisition  of  the  legal  title  by  Goodnow  united  in  him 
the  ownership  of  the  house  and  lot,  and  the  lien  rests  upon 
his  interest  in  both,  and  he  is  not  permitted  to  defeat  it  by 
setting  up  title  in  a  third  person  previous  to  that  date.  The 
lien  is  continuing,  and  binds  the  whole  estate  or  interest  of 
the  debtor  in  the  building  and  lot  on  which  it  stands:  Gen. 
Stats.  1878,  c.  90,  sees.  7,  10.  The  plaintiflf  is  therefore  en- 
titled to  judgment  as  prayed  in  his  complaint,  if  his  lien 
is  otherwise  valid. 

2.  The  time  for  filing  a  lien  upon  the  premises  for  the  in- 
debtedness referred  to  expired  December  16,  1881.  Defend- 
ants claim  that  the  proof  fails  to  show  that  a  properly  verified 
account  and  claim  for  a  lien  was  filed  within  that  time.  A 
paper  purporting  to  be  such  claim  was  filed  in  the  office  of 
the  register  of  deeds  on  June  25,  1881.  The  writing  also  pur- 
ported to  bo  sworn  to  before  the  register,  C.  W.  Fenlason,  but 
the  signature  of  the  officer  was  not  authenticated  by  his 
official  seal.  It  was  received  in  evidence  by  the  trial  court, 
which  finds  that  at  the  time  of  the  trial,  October,  1882,  "  there 


634  CoLMAN  V.  GooDNOw.  [Minn. 

was  an  impression  of  the  seal  of  the  register  of  deeds  imme- 
diately at  the  left  of  the  name  of  C.  W.  Feulason,  signed  to 
the  jurat  of  the  aflBdavit,  but  such  impression  was  made  and 
placed  there  subsequently  to  the  fifth  day  of  August,  1881, 
and  before  the  trial,  but  by  whom  does  not  appear,  but  that 
when  C.  W.  Fenlason  signed  the  jurat  he  used  no  seal  at  all 
in  the  execution  of  it";  and  it  is  not  shown  that  the  instru- 
ment was  so  authenticated  by  the  seal  within  the  time  al- 
lowed by  law. 

The  court  below  found  the  lien  invalid,  and  we  see  no  way 
of  escape  from  arriving  at  the  same  conclusion.  The  statute 
requires  the  register  to  afl&x  his  seal  to  all  documents  requir- 
ing his  oflScial  signature.  A  special  exception  is  made  in  the 
case  of  certificates  indorsed  on  recorded  instruments:  Gen. 
Stats.  1878,  c.  8,  sees.  186,  188.  But  certificates  of  acknowl- 
edgment, and  aflfidavits  taken  and  sworn  to  before  him,  must, 
it  will  be  seen,  be  so  authenticated.  We  cannot  regard  the 
statute  as  merely  directory.  Registers  of  deeds  were  empow- 
ered to  administer  oaths  and  take  acknowledgments  by  the  act 
of  March  1, 1856,  and  by  the  same  act  were  directed  to  provide 
seals  with  which  to  authenticate  their  oflBcial  signatures. 
Whether  this  should  be  so  required  was  for  the  legislature  to 
determine,  and  the  courts  are  obliged  to  give  efiect  to  the  stat- 
utory provision:  De  Graw  v.  King,  28  Minn.  118.  His  author- 
ity to  take  acknowledgments  and  aflBdavits  is  purely  statutory, 
and  the  directions  of  the  statute  must  be  followed.  The  affi- 
davit was  therefore  incomplete,  and  not  properly  authenticated, 
when  filed  and  recorded;  and  in  order  to  preserve  the  lien,  it 
was  necessary  that  the  account  and  claim  should  be  properly 
verified  and  duly  filed  within  the  required  period:  Knight  v. 
Elliott,  22  Minn.  551.  The  defect  could  not  be  supplied  by 
proof.  The  paper  as  verified  must  be  complete  in  itself,  and 
appear  on  its  face  to  be  what  it  ought  to  be,  to  entitle  it  to  be 
recorded,  and  to  make  it  evidence:  Id.  552, 

The  respondent  is  entitled  to  raise  the  objection  to  the  in- 
sufficiency of  this  paper  to  warrant  a  judgment  other  than 
rendered,  notwithstanding  it  was  received  in  evidence  against 
his  objection.  Had  it  been  ruled  out,  plaintiff  would  have 
failed  for  that  reason.  As  it  was  received  and  made  part  of 
the  record  and  findings,  the  defendants  may  still  insist  upon 
its  insufficiency  to  sustain  plaintiff's  claim  for  a  lien,  and  that 
the  conclusion  of  law  and  decision  of  the  court  refusing  such 
lien  are  supported  by  the  record. 


Oct  1886.J  Wilson  v.  Jamison.  635 

We  regret  that  the  case  must  turn  on  this  point,  hut  we  see 
no  way  of  avoiding  it. 
Judgment  affirmed. 

Mbohanics'  Ltens,  Estates  and  Iktkrests  Affectkd  by:  See  Smith 
Bridge  Co.  v.  Bowman,  52  Am.  Rep.  67;  Oraham  v.  ML  Sterling  Coalroad  Co., 
29  Id.  412;  TtUtle  v.  Howe,  100  Am.  Dec.  205,  note  211,  where  other  cases  in 
that  series  are  collected;  Galbreath  v.  Damdson,  99  Id.  233,  note  236. 

Stbict  CoiiPLiANCK  WITH  Preeequisites  Requibed  bt  STATUTE  mnst  be 
shown  by  a  party  claiming  the  benefit  of  the  mechanic's  lien  law:  Farma-a' 
Bankv.  Witulow,  74  Am.  Dec.  740. 


Wilson  v.  Jamison. 

[86  MlHNKSOTA,  69.  J 

Iir  Suit  to  Foreclose  Moetgaqe,  Parties  hat  LrnoATE  Vauditt  or  Tax 
Tttlb  asserted  by  the  holder  of  a  junior  lien  to  give  him  an  absolute  title 
to  the  land,  discharged  from  the  lien  of  the  mortgage,  where  the  holder 
of  such  junior  lien  has  been  made  a  party  defendant  in  the  suit. 

Holder  o7  Judgment  Lien  Junior  to  Mortqaqb  can,  bt  Purchasing  at 
Tax  Sale,  Acquire,  as  against  the  mortgagee,  a  title  divesting  the  lien 
of  the  mortgage.     (By  equally  divided  court.) 

Action  to  foreclose  mortgage.    The  opinion  states  the  case. 

W.  E.  Bramhallf  for  the  appellants. 

B.  8.  Leuois^  for  the  respondent. 

By  Court,  Dickinson,  J.  This  is  an  action  to  foreclose  a 
mortgage  given  in  1875  hy  the  defendant  Gadient,  the  owner 
of  the  land,  to  McCutchen,  of  whose  estate  the  plaintiffs  are 
executors.  In  1880  the  defendant  Jamison  recovered  a  judg- 
ment, which  was  docketed  in  the  county  in  which  the  land  in 
question  is  situated,  against  the  mortgagor,  Gadient.  From  the 
findings  of  the  court,  it  further  appears  that  in  August,  1881, 
under  the  law  of  1881  relating  to  forfeited  lands,  judgment  was 
rendered  charging  this  land  with  taxes  for  the  year  1875,  and 
several  subsequent  years,  and  the  land  was  sold  under  such 
tax  judgment  in  September,  1881;  this  defendant,  Jamison, 
being  the  purchaser,  and  receiving  the  proper  certificate  of 
sale.  Tax  judgments  were  also  rendered  against  the  land  in 
1882,  1883,  and  1884,  for  the  delinquent  taxes  of  1881,  1882, 
and  1883,  respectively.  Sales  were  made  of  the  land  under 
each  of  these  judgments,  to  persons  who  purchased  in  behalf 
of  Jamison,  and  who  afterwards  assigned  to  him  the  interest 
acquired  by  them  by  such  purchases.     During  all  this  time 


636  Wilson  v.  Jamison.  [Minn. 

Jamison  was  the  owner  of  the  judgment,  which  was  a  lien  upon 
a  portion  of  the  land,  eighty  acres  of  the  tract  being  a  home- 
stead. At  the  time  of  the  recovery  of  the  judgment  against 
Gadient,  and  until  after  the  commencement  of  this  action, 
Gadient  resided  upon  the  land. 

The  court  determined  that,  by  the  tax  sales  in  1881  and 
1882,  no  redemption  having  been  made,  Jamison  acquired  title 
in  fee,  and  that  he  holds  the  same  discharged  of  the  mortgage, 
and  that  a  foreclosure  sale  of  the  mortgaged  premises  should 
therefore  not  be  decreed.  Judgment  was  entered  accordingly, 
in  which  title  in  fee  was  adjudged  to  be  in  Jamison,  discharged 
from  the  lien  of  the  mortgage.  This  appeal  is  from  the  judg- 
ment. 

It  is  urged  that  in  this  action  there  could  be  no  such  adjudi- 
cation in  favor  of  Jamison,  and  Banning  v.  Bradford,  21  Minn. 
808,  18  Am.  Rep.  398,  is  relied  upon  as  supporting  this  posi- 
tion. It  may  be  conceded  that  the  complaint  does  not  tender 
an  issue  as  to  the  validity  of  the  tax  judgments  or  sales,  but 
only  whether  the  judgment  creditor,  as  a  purchaser  at  the  tax 
Bales  (assuming  the  judgments  and  sales  to  have  been  valid), 
Btood  in  any  other  position  as  to  the  mortgagee  than  one  hav- 
ing a  jum'or  lien  or  estate,  with  a  right  to  redeem  from  the 
mortgage.  But,  taking  into  consideration  the  answer  and  the 
reply,  the  issues  joined  were  broad  enough  to  enable  the  parties 
to  litigate,  and  the  court  to  adjudicate,  as  to  the  validity  of 
Jamison's  asserted  title,  if  the  parties  could  in  such  an  action 
Bubmit  such  an  issue,  and  if  the  court  could  entertain  it;  and 
it  is  to  be  here  presumed,  in  favor  of  the  determination  and 
judgment  in  review,  nothing  appearing  from  the  record  to  for- 
bid the  presumption,  that  all  matters  adjudicated,  at  least  all 
which  might  have  been  litigated  under  the  pleadings,  were 
submitted  for  determination. 

The  case  is  distinguishable  from  that  of  Banning  v.  Brad- 
ford,  supra,  by  the  fact  that  the  adverse  title  which  is  the 
subject  of  this  adjudication  was  acquired  subsequent  to  the 
mortgage.  The  original  validity  of  the  mortgage  was  not 
brought  in  question,  but  the  tax  title,  if  valid,  had  the  ef- 
fect to  relieve  the  land  from  the  encumbrance  of  the  mort- 
gage, and  to  extinguish  the  right  of  the  mortgagee  to  the 
remedy  here  sought, — that  is,  to  have  the  land  sold  for 
the  satisfaction  of  his  debt.  Whether  the  lien  of  the  mort- 
gage had  been  thus  extinguished  depended  upon  the  validity 
of  the  tax  title.     In  an  action  in  which  it  is  sought  to  enforce 


Oct.  1886.]  Wilson  v.  Jamison.  637 

the  mortgage  throngli  a  judgment  for  a  sale  of  the  premises, 
we  recognize  no  impropriety  in  an  adjudication  as  to  the 
validity  of  the  title  asserted  by  the  defendant,  and  which,  if 
valid,  has,  in  effect,  superseded  or  extinguished  the  lien  of  the 
mortgage.  Such  a  fact  would  be  a  suflBcient  reason  why  the 
mortgage  should  not  be  enforced  by  a  decree  for  the  sale  of 
the  premises.  As  to  this  point,  the  case  is  closely  analogous 
to  that  of  Churchill  v.  Proctor,  31  Minn.  129,  where  in  such 
an  action  the  right  to  contest  for  the  purpose  of  avoiding  an 
adverse  estate,  which,  if  valid,  defeated  the  mortgage,  was  sus- 
tained; and  see  Allison  v.  Armstrong ,  28  Id.  276,  41  Am.  Rep. 
281,  where  a  judgment  sustaining  the  asserted  adverse  title 
was  reversed  upon  the  ground  of  the  invalidity  of  such  title, 
without  any  suggestion  being  made  that  such  an  issue  could 
not  be  tried  in  an  action  such  as  that  was  to  foreclose  a  mort- 
gage: See  also  Middletown  Savings  Bank  v.  Bacharach,  46 
Conn.  513. 

The  further  question  is  here  presented,  whether  the  judg- 
ment creditor  of  the  mortgagor,  having  by  his  judgment  a 
lien  upon  the  property  junior  to  the  mortgage,  could  by  pur- 
chasing at  tax  sale  acquire,  as  against  the  mortgagee,  a  title 
divesting  the  lien  of  the  mortgage;  or  whether  such  a  pur- 
chase will  be  treated  in  equity  in  favor  of  the  mortgagee  as  a 
payment  of  the  tax,  and  the  acquisition  of  an  additional  lien. 
One  of  the  members  of  the  court,  Mr.  Justice  Berry,  was  dis- 
qualified by  relation  to  one  of  the  parties  from  sitting  in  the 
case.  The  remaining  four  members  of  the  court  stand  equally 
divided  upon  this  question.  This  necessarily  results  in  an 
affirmance  of  the  decision  of  the  court  below  upon  this  point, 
and  for  the  purpose  of  this  case;  but  since  under  these  cir- 
cumstances there  is  no  final  decision  by  this  court  of  the  prin- 
ciple involved,  we  forbear  from  any  discussion  of  the  subject 
in  this  opinion. 

Some  points  were  first  made  by  the  appellant  in  a  brief  pre- 
sented in  reply  to  the  respondent's  brief,  which,  as  was  an- 
nounced at  the  time  of  the  argument,  we  do  not  consider. 

Judgment  affirmed. 

Paktt  Entkbiko  on  Land  as  Mkrb  Intbttdkr  mat  Aoquibb  TnxB 
VKBEB  Tax  Dued,  advene  to  the  former  owner  or  hia  grantee:  Link  ▼. 
Dotrftr,  24  Am.  Rep.  417. 

MoRTOAooR  CANNOT  AcQUiRB  Valid  Tax  Tttu  TO  Prkmisss  as  against 
the  mortgagee:  Alliaon  v.  Armstrong,  41  Am.  Rep.  281;  nor  can  a  mortgagee 
•et  np  a  tax  titla  acquired  by  him,  aa  against  the  mortgagor:  JIUU  v.  Tuk*y, 


638  Butler  v.  Chambers.  [Minn. 

83  Am.  Deo.  74;  nor  can  a  pnrchaser  under  proceedings  to  foreclose  a  senior 
mortgage,  to  which  a  junior  mortgagee  was  not  made  a  party,  l>y  purchasing 
the  mortgaged  premises  for  taxes,  thereby  acquire  rights  which  will  bar  the 
junior  mortgagee  from  redeeming  upon  the  payment  of  the  proper  amount 
due:  Anson  v.  Anson,  89  Id.  514. 

Holder  op  Tax  TrrLS,  whether  Proper  Defendant  in  Suit  to 
Foreclose  Mortqaoe.  —  The  principal  case  is  apparently  at  variance  with 
Odell  V.  Wilson,  63  Cal.  159.  In  that  case,  which  was  an  action  to  foreclose 
a  mortgage,  one  Kay  was  made  a  party  defendant,  under  the  allegation  that 
he  had  or  claimed  some  interest  in  the  mortgaged  premises,  which  was  sub- 
sequent  and  subject  to  the  lien  of  the  mortgage.  The  court  found  the  claim 
of  Kay  to  be  invalid.  It  was  based  on  a  tax  sale;  but  whether  such  sale  was 
made  before  or  after  the  execution  of  the  mortgage  does  not  appear  from  the 
report  of  the  case.  The  supreme  court,  without  considering  the  validity  of 
Kay's  claim,  reversed  the  judgment,  upon  the  ground,  apparently,  that  the 
claim  of  Kay  was  adverse  to  that  of  the  mortgagor,  and  could  not  be  liti- 
gated  in  that  action.  So  far  as  the  two  cases  conflict,  we  think  preference 
must  be  conceded  to  the  principal  case.  If  subsequently  to  the  execution  of 
a  mortgage  the  property  is  sold  for  taxes,  the  whole  title,  if  the  sale  is  valid, 
vests  in  the  purchaser,  and  the  right  of  the  mortgagor  to  appropriate  the 
property  to  the  satisfaction  of  his  debt  no  longer  exists.  Even  if  the  sale 
be  invalid,  the  existence  of  the  tax  title  must  furnish  a  substantial  impedi- 
ment  to  the  enforcement  of  the  mortgage  by  a  foreclosure  sale,  as  no  third 
person  would  purchase  the  property  at  a  fair  price  and  assume  the  burden 
of  a  subsequent  litigation  with  the  holder  of  the  tax  title.  Hence  the  mort- 
gagor should  be  permitted  to  bring  the  claimant  before  the  court  in  the  suit 
to  foreclose,  for  the  purpose  of  determining  whether  the  mortgagor's  rights 
have  or  have  not  been  divested  by  the  tax  sale.  The  rule  upon  this  subject, 
as  stated  by  Mr.  Jones,  is,  that  "  one  who  claims  under  a  tax  title  which  be- 
came a  lien  after  the  mortgage  is  a  proper  party,  as  the  claim  is  made  for  an 
interest  in  the  equity  of  redemption;  but  one  claiming  under  a  tax  deed  as  a 
paramount  title  is  not  a  proper  party  ":  Jones  on  Mortgages,  sec.  1440,  citing 
Horton  v.  tngenoU,  13  Mich.  409;  Hoberta  v.  Wood,  38  Wis.  60. 


BuTLEE  V,  Chambers. 

[86  Minnesota,  69.] 

Statute  Intembsd  to  Restrain  or  Suppress  Manxttaotube  and  Salb  o» 
Oleomabqabine,  and  like  compounds  resembling  and  intended  as  a 
substitute  for  butter,  is  valid,  as  a  legitimate  exercise  of  the  police 
power  of  the  state.  Such  legislation  is  justified  upon  the  ground  that 
the  use  of  the  inhibited  compounds  is  injurious  to  the  public  health. 

Provisions  of  Section  4  of  Chapter  149,  Laws  of  1885,  are  Legiti- 
MATELT  Connected  with  Subject  of  the  act,  and  included  therein,  and 
therefore  the  act  is  not  repugnant  to  article  4,  section  27,  of  the  consti- 
tution of  Minnesota. 

Action  brought  to  recover  the  value  of  merchandise  sold 
and  delivered  to  the  defendant.  The  answer  set  up  as  a  de- 
fense that  the  merchandise  was  manufactured  out  of  oleagi- 


Nov.  1886.]  Butler  v.  Chambers.  639 

nous  substances,  and  out  of  a  compound  other  than  that 
produced  from  unadulterated  milk,  and  out  of  a  compound 
other  than  that  produced  from  cream  from  unadulterated 
milk;  that  it  was,  when  sold,  an  article  manufactured  and 
designed  to  take  the  place  of  butter  produced  from  un- 
adulterated milk,  and  to  take  the  place  of  butter  produced 
from  cream  of  unadulterated  milk;  that  it  was  offered  for  sale, 
and  sold  to  defendant,  as  an  article  of  food ;  that  it  was  not 
pure  skim-milk  cheese,  made  from  pure  skim-milk;  and  that 
it  was  offered  for  sale,  and  sold  and  delivered,  contrary  to  the 
provisions  of  Laws  of  1885,  chapter  149.  The  court  below  sus- 
tained a  demurrer  to  the  answer,  and  the  defendant  appealed 
from  the  order.    Other  facts  are  stated  in  the  opinion. 

Rogers  and  Hadley,  for  the  appellant. 

Warner,  Stevens,  and  Lawrence,  for  the  respondent. 

By  Court  Vanderburgh,  J.  The  demurrer  to  the  answer 
brings  up  the  constitutional  validity  of  Laws  of  1885,  chapter 
149,  section  4.  The  act  is  entitled  "  An  act  to  prohibit  and 
prevent  the  sale  or  manufacture  of  unhealthy  or  adulterated 
dairy  products."  Section  1  provides  a  penalty  for  selling,  or 
exposing  for  sale,  "  unclean,  impure,  unhealthy,  adulterated, 
or  unwholesome  milk,"  or  the  product  thereof.  Section  2  pro- 
vides that  "  no  person  shall  keep  cows  for  the  production  of 
milk  for  market,  or  for  sale  or  exchange,  or  for  manufacturing 
the  same  into  articles  of  food,  in  a  crowded  or  unhealthy  con- 
dition, or  feed  the  cows  on  food  that  is  unhealthy,  or  that  pro- 
duces impure,  unhealthy,  diseased,  or  unwholesome  milk"; 
and  also  prohibits  the  manufacture  or  sale  of  the  products  of 
such  milk.  Section  3  prohibits  the  sale  or  delivery  to  any 
butter  or  cheese  manufactory  of  "  any  milk  diluted  with  water, 
or  unclean,  impure,  or  adulterated  milk."  Section  5  provides 
a  penalty  for  exposing  for  sale  butter  or  cheese  branded  or 
labeled  with  a  false  brand.  Section  6  regulates  the  sale  of 
condensed  milk;  and  other  provisions  relate  to  the  appoint- 
ment and  duties  of  the  dairy  commissioner. 

These  provisions  of  the  statute  are  all  unquestionably  within 
the  legislative  authority;  but  it  is  contended  that  section  4  is 
unconstitutional,  especially  on  the  ground  that  it  is  an  in- 
fringement upon  the  rights,  privileges,  and  liberty  of  the  citi- 
zens, without  due  process  of  law.  The  section  in  question 
reads  as  follows:  "No  person  shall  manufacture,  out  of  any 


640  Butler  v.  Chambers.  [Minn. 

oleaginous  substance  or  substances,  or  any  compound  of  the 
same,  or  any  compound  other  than  that  produced  from  un- 
adulterated milk,  or  of  cream  from  the  same,  any  article  de- 
signed to  take  the  place  of  butter  or  cheese  produced  from 
pure,  unadulterated  milk,  or  cream  from  the  same,  or  shall 
sell,  or  offer  for  sale,  the  same  as  an  article  of  food.  This 
shall  not  apply  to  pure  skim-milk  cheese,  made  from  pure 
skim- milk." 

The  defendant  contends  that  these  provisions  fall  within  the 
general  police  powers  of  the  state,  and  are  therefore  valid. 

In  1881  the  legislature  passed  an  act  entitled  "An  act  to 
regulate  the  traflSc  in  oleomargarine":  Laws  1881,  c.  133. 
This  act  provides  that  "  any  person  who  shall  knowingly  sell, 
or  offer  for  sale,  any  article  or  substance  in  semblance  of  but- 
ter, not  the  legitimate  product  of  the  dairy,  made  exclusively 
of  milk  and  cream,  but  into  the  composition  of  which  the  oil 
or  fat  of  animals,  or  melted  butter,  or  any  oil  thereof,  enters 
as  a  substitute  for  cream,  in  tubs,  firkins,  or  other  original 
packages,  not  distinctly,  legibly,  and  durably  branded,  .... 
shall  be  guilty  of  a  misdemeanor,"  etc.  It  cannot  be  doubted 
that  the  act  of  1881  was  a  legitimate  exercise  of  police  power. 
The  public  may  be  protected  by  appropriate  legislation  against 
imposition  in  the  purchase  of  articles  for  consumption;  and 
if,  as  we  may  assume,  the  prevalent  compounds  resembling 
butter  in  appearance  and  flavor,  and  put  on  the  market  as  a 
substitute  for  it,  and  generally  known  as  "  oleomargarine," 
"butterine,"  etc.,  are  liable  to  deceive  and  mislead  purchasers 
and  consumers  as  to  the  real  nature  of  the  product,  and  espe- 
cially if  such  preparations  are  made  of  unwholesome  ingredi- 
ents, then  we  think  there  may  be  suflficient  reasons  why  the 
legislature  may,  in  its  discretion,  meet  the  evil  sought  to  be 
remedied  by  provisions  for  the  suppression  of  the  manufacture 
and  sale  of  such  artificial  compounds  altogether:  State  v.  Ad- 
dington,  12  Mo.  App.  214;  77  Mo.  110;  People  v.  McOann,  34 
Hun,  358. 

It  cannot  be  necessary,  at  this  day,  in  view  of  the  numerous 
decisions  of  the  state  and  federal  courts,  to  enter  into  any  elabo- 
rate discussion  to  show  that  the  legislature  may  exercise  such 
powers  in  behalf  of  the  state.  As  respects  the  right  or  liberty 
of  the  citizen  to  engage  in  business,  and  conduct  industrial 
pursuits,  these  privileges  are  to  be  enjoyed  in  subordination  to 
the  general  public  welfare,  and  all  reasonable  regulations  for 
the  preservation  and  promotion  thereof.     "All  property,"  says 


Nov.  1889.]  Butler  r.  Chambers.  641 

the  court  in  Commonwealth  v.  Alger,  7  Cush.  53,  85,  "  is  held 
subject  to  the  general  regulations  which  are  necessary  to  the 
common  good  and  general  welfare.  Rights  of  property,  like- 
all  other  social  and  conventional  rights,  are  subject  to  such 
reasonable  limitations  in  their  enjoyment  as  shall  prevent 
them  from  being  injurious,  and  to  such  reasonable  restraints 
and  regulations,  established  by  law,  as  the  legislature,  under 
the  governing  and  controlling  power  vested  in  them  by  the 
constitution,  may  think  necessary  and  expedient":  Thorpe  v. 
Rutland  &  B.  R.  Co.,  27  Vt.  140;  62  Am.  Dec.  625. 

The  reasonable  limits  of  the  exercise  of  such  power  it  is  not 
easy  to  define.  It  is  not  a  matter  of  caprice  or  unlimited  dis- 
cretion on  the  part  of  the  legislature;  but  these  questions  can 
usually  be  best  determined  as  cases  arise,  and  within  proper 
limits,  it  is  for  the  legislature  to  judge  as  to  the  extent  and 
character  of  restrictive  measures  which  may  be  found  neces- 
sary in  any  particular  class  of  cases.  In  Metropolitan  Board 
of  Excise  V.  Barrie,  34  N.  Y.  657,  666,  the  court  say:  "A  state 
is  not  sovereign,  without  the  power  to  regulate  all  its  in- 
ternal commerce  as  well  as  police It  is  a  bold  as- 
sertion at  this  day  that  there  is  anything  in  the  state  or 
United  States  constitutions  conflicting  with  or  setting  bounds 
upon  the  legislative  discretion  or  action  in  directing  how, 
when,  and  where  a  trade  shall  be  conducted  in  articles  inti- 
mately connected  with  the  public  morals,  public  safety,  or 
public  prosperity;  or  indeed,  to  prohibit  and  suppress  such 
traffic  altogether,  if  deemed  essential  to  efiect  those  great  ends 
of  good  government." 

It  is  also  well  settled  that  such  laws  are  not  invalid  because 
in  conflict  with  the  power  of  Congress  over  commerce.  In  the 
License  Cases,  5  How.  504, 577,  it  is  said:  "A  state  is  not  bound 
to  furnish  a  market  for  imported  goods,  nor  to  abstain  from 
tbe  passage  of  any  law  which  it  may  deem  necessary  or  advis- 
able  to  guard  the  health  or  morals  of  its  citizens."  And  so  ia 
Bartemeyer  v.  Iowa,  18  Wall.  129,  it  was  held  that  such  legis- 
lation was  not  in  conflict  with  the  fourteenth  amendment  of 
the  federal  constitution:  Commonwealth  v.  Kimhall,  24  Pick. 
359;  35  Am.  Dec.  326,  332. 

The  amended  New  York  law  on  the  subject  under  consider- 
ation (Sess.  Laws  N.  Y.  1885,  c.  458,  sec.  2)  prohibits,  among 
other  things,  the  manufacture,  except  from  unadulterated 
milk  and  cream,  of  any  product  "  in  imitation  or  semblance 
of"  natural  butter  made  from  cream,  and  also  prohibits  the 
Am.  St.  Rcp.,  Vol.  I.  —  41 


642  Butler  v.  Chambers.  [Minn. 

sale  of  any  article  produced  in  violation  of  such  act.  In  Peo- 
pie  V.  Arensberg,  40  Hun,  358,  103  N.  Y.  388,  57  Am.  Rep.  741, 
105  N.  Y.  123,  59  Am.  Rep.  483,  a  conviction  for  the  "\nolation 
of  that  act  was  sustained,  on  the  ground  that  the  legislature 
might  not  only  interpose  to  protect  the  public  health,  but  to 
prevent  fraud  and  imposition  in  the  simulation  of  a  healthy 
article  of  food  universally  consumed  by  the  people;  and  upon 
this  proposition  we  are  disposed  to  rest  our  decision  in  this 
case.  The  case  just  cited  arose  subsequent  to  that  of  People 
V.  Marc,  99  N.  Y.  377,  52  Am.  Rep.  34,  but  was  distinguished 
from  it  on  the  ground  of  the  diflference  in  the  wording  of  the 
statutes  under  which  the  convictions  were  had.  In  the  latter 
case,  the  prosecution  was  under  a  section  like  that  of  our  own 
statute  now  under  consideration,  and  the  statute  was  held  void 
chiefly  because  it  was  construed  to  be  an  attempt  on  the  part 
of  the  legislature  to  drive  the  manufactured  article  from  the 
market  for  the  benefit  of  another  industry,  and  to  protect  those 
engaged  in  the  manufacture  of  dairy  products  against  the  com- 
petition of  cheaper  substances,  capable  of  being  applied  to  the 
same  uses, — in  other  words,  that  the  object  of  the  statute  was 
to  prohibit  one  industry  in  order  to  foster  another.  This  as- 
sumes that  the  object  of  the  legislature  was  for  the  benefit  of 
a  class,  and  that  there  were  no  reasonable  grounds  for  the  exer- 
cise of  the  police  power;  because,  if  there  were  such  grounds, 
it  is  no  objection  that  a  legitimate  industry  is  incidentally 
benefited  as  the  practical  result  of  the  operation  of  the  statute. 
We  do  not  think  the  court  would  be  warranted  in  setting  aside 
this  legislation  on  such  grounds.  As  said  by  the  court  in  Peo- 
ple  V.  Albertson,  55  N.  Y.  50:  "  Courts  do  not  sit  in  review  of 
the  discretion  of  the  legislature,  or  determine  upon  the  expe- 
diency, wisdom,  or  propriety  of  legislative  action  in  matters 
within  the  power  of  the  legislature.  Every  intendment  is  in 
favor  of  the  validity  of  statutes,  and  no  motive,  purpose,  or  in- 
tent can  be  imputed  to  the  legislature  in  the  enactment  of  a 
law  other  than  such  as  are  apparent  upon  the  face,  and  to  be 
gathered  from  the  terms  of  the  law  itself.^' 

Oleomargarine  and  kindred  products  have  been  manufac- 
tured and  disposed  of  to  a  greater  or  less  extent  for  years,  and 
there  has  been  sufficient  opportunity  to  test,  by  observation  and 
experience,  their  general  character,  and  the  methods  adopted 
in  conducting  the  business  of  the  manufacture  and  sale  of  such 
substitutes  for  butter,  so  as  to  enable  the  legislature  to  deter- 
mine as  to  the  necessity  or  propriety  of  police  regulation  or 


Nov.  1886.]  Butler  v.  Chambers.  643 

restriction.  It  is  doubtless  easy  to  introduce  cheap  and  un- 
wholesome ingredients  into  their  manufacture,  and  the  product 
is  easily  passed  off  upon  the  consumer,  under  the  semblance 
of  butter,  without  detection  of  the  fraud. 

As  respects  similar  legislation  restricting  the  sale  of  milk 
mixed  with  water,  the  court  in  Commonwealth  v.  Waite,  11 
Allen,  264,  87  Am.  Dec.  711,  use  this  language:  "It  is  noto- 
rious that  the  sale  of  milk  adulterated  with  water  is  extensively 
practiced  with  a  fraudulent  intent.  It  is  for  the  legislature  to 
judge  what  reasonable  laws  ought  to  be  enacted  to  protect  the 
people  against  this  fraud,  and  to  adapt  the  protection  to  the 
nature  of  the  case."  Similar  statutes,  prohibiting  the  sale  of 
milk  reduced  below  a  certain  standard  on  account  of  the  pres- 
ence of  water,  were  held  constitutional  in  Commonwealth  v. 
Evans,  132  Mass.  11,  and  in  State  v.  Smyth,  14  R.  I.  100;  51 
Am.  Rep.  344.  We  know  of  no  good  reason,  therefore,  why 
laws  for  the  suppression,  as  well  as  regulation,  of  the  manu- 
facture and  sale  of  the  compounds  against  which  the  statute 
in  question  appears  to  be  leveled  may  not  be  sustained. 

The  language  of  the  section  in  controversy  is  the  same  as 
that  in  similar  statutes  of  several  of  the  states.  In  some 
instances  the  objection  has  been  raised  that  its  terms  are  too 
broad,  and  may  be  intended  to  include,  not  merely  the  com- 
pounds referred  to,  but  other  harmless  preparations  which 
consumers  might  choose  to  use  in  the  place  of  butter.  This 
point  is  not,  however,  raised  by  counsel  in  this  case.  It  was 
assumed  upon  the  argument  that  the  statute  in  question  was 
intended  to  restrain  or  suppress  the  manufacture  and  sale  of 
oleomargarine  and  like  compounds  resembling  and  intended 
as  a  substitute  for  butter. 

From  the  title  of  the  act,  and  the  general  tenor  and  mani- 
fest object  of  its  provisions,  it  may  be  fairly  construed,  we 
think,  to  have  been  directed  against  the  manufactured  substi- 
tutes for  butter  above  designated;  and  the  statute  will  hardly 
be  construed  to  apply  to  articles  bearing  so  little  resemblance 
to  butter  that  they  could  not  be  substituted  for  it  as  an  article 
of  commerce.  For  example,  olive-oil  is  sold  for  table  use,  yet 
wo  think  it  could  not  reasonably  be  held  to  bo  a  substitute  for 
butter,  within  the  meaning  of  the  section  in  question;  and  that 
prosecution  for  the  sale  of  such  articles  under  this  act  could 
not  be  sustained  under  the  strict  rule  of  construction  applicable 
to  criminal  prosecutions. 

It  is  claimed  that  the  act  is  repugnant  to  article  4,  section 


644  Butler  v.  Chambers.  [Minn. 

27,  of  the  constitution,  on  the  ground  that  the  Bubject-matter 
of  section  4  is  not  embraced  in  the  title.  But  the  provisions 
of  that  section  are,  we  think,  legitimately  connected  with  the 
subject  of  the  act  and  included  therein.  An  article  manufac- 
tured and  sold  as  butter,  which  is  not  a  genuine  dairy  product, 
would  fairly  come  within  the  spirit  and  object  of  the  act,  as- 
entitled,  without  reference  to  the  extent  of  adulteration,  or  the 
peculiar  process  of  manufacture,  and  though  the  product  be 
wholly  simulated. 

This  legislation  sufficiently  conforms  to  the  title,  and,  as  be- 
fore observed,  is  justified  upon  the  ground  that  the  use  of  the 
inhibited  compounds,  in  its  tendency  and  results,  is  injurious  to 
the  public  health;  and  especially  because  the  adulterated 
article  is  not  readily  distinguished  from  the  genuine,  and  is 
easily  substituted  for  it,  so  as  to  work  a  fraud  upon  those  who 
actually  use  and  consume  it,  as  well  as  upon  purchasers;  and 
for  these  reason  it  was  considered  by  the  legislature  that  the 
mischief  could  only  be  effectually  suppressed  or  remedied  by 
the  imposition  of  severe  penalties. 

What  the  nature  of  the  remedy  should  be,  within  the  proper 
limits  of  the  police  power,  was  for  the  legislature  to  determine, 
and  with  the  wisdom  or  policy  of  such  legislation  the  courts 
have  nothing  to  do. 

Order  reversed. 


FowEB  OF  iStatk  to  Begui^te  OB  FBOHiBrr  Sale  ob  Maktttaotttbb  ov 
Abticles.  —  It  is  undoubtedly  the  right  of  an  American  citizen  to  engage  in 
any  lawful  calling  that  he  chooses,  and  to  dispose  of  his  property  as  he  sees 
fit,  so  long  as  by  so  doing  he  inflicts  no  injury  upon  others.  Bat  it  is  no  less 
true  that  the  legislature  of  a  state  may,  in  the  exercise  of  its  police  power, 
pass  laws  for  the  regulation  or  prohibition  of  any  trade  or  business  that  may 
be  injurious  to  the  safety  or  well-being  of  society.  The  police  power  of  the 
state  extends  to  all  regulations  affecting  the  health,  good  order,  morals,  peace, 
and  safety  of  society.  And  when  such  regulations  do  not  conflict  with  any 
constitution£il  inhibition  or  natural  right,  their  validity  cannot  be  successfully 
controverted:  SlaugJUer-house  Cases,  16  WalL  36;  Bartemeyer  v.  Iowa,  18  Id. 
129;  Beer  Company  v.  Massachusetts,  97  U.  S.  25;  Patterson  v.  Kentticky,  97 
Id.  501;  Stone  v.  Mississippi,  101  Id.  814;  ButcJiers^  Union  etc.  Co.  v.  Crescent 
City  etc  Co.,  Ill  Id.  746;  Barbier  v.  Connolly,  113  Id.  27;  Soon  Hmg  v.  Crcm- 
ley,  113  Id.  703;  Dams  v.  State,  68  Ala.  58;  44  Am.  Rep.  128;  Woods  v.  Staie, 
36  Ark.  36;  38  Am.  Rep.  22;  Toledo  etc.  R'y  Co.  v.  City  cf  Jacisonmlle,  67 
ni.  37;  16  Am.  Rep.  611;  State  v.  Mugler,  29  Kan.  252;  44  Am.  Rep.  634; 
Oommontoealth  v.  Alger,  7  Cush.  53;  Blair  v.  Forehand,  100  Mass.  136;  1 
Am.  Rep.  94;  ComnumuxaUh  v.  Inlooacating  Liquors,  115  Mass.  153;  Com- 
monvoeaUh  v.  Evans,  132  Id.  11;  Moore  v.  State,  48  Miss.  147;  Metropolitan 
Board  of  Excise  v.  Barrie,  34  N.  Y.  657;  Bertholf  v.  O'ReUly,  74  Id.  509;  30 
Am.  Rep.  323;  State  v.  Ah  Chew,  16  Nev.  50;  40  Am.  Rep.  488;  State  v. 


Nov.  1886.]  Butler  v.  Chambers.  645 

Burgoyne,  7  Lea,  173;  40  Am.  Rep.  60;  Donnelly  v.  Decker,  58  Wis.  461; 
46  Am.  Rep.  637;  Preston  v.  Drew,  54  Am.  Dec.  639;  State  v.  Oumey, 
58  Id.  782.  Mr.  Justice  Bradley,  in  delivering  the  opinion  of  the  court  in 
Beer  Co.  v.  Massachusetts,  97  U.  S.  25,  discussing  this  question,  said:  "If  the 
public  safety  or  the  public  morals  require  the  discontinuance  of  any  manu- 
facture or  traflBc,  the  hand  of  the  legislature  cannot  be  stayed  from  provid- 
ing for  its  discontinuance,  by  any  incidental  inconvenience  which  individuals 
•  or  corporations  may  suffer.  All  rights  are  held  subject  to  the  police  power 
of  the  state Whatever  dififercnces  of  opinion  may  exist  as  to  the  ex- 
tent and  boundaries  of  the  police  power,  and  however  difficult  it  may  be  to 
render  a  satisfactory  definition  of  it,  there  seems  to  be  no  doubt  that  it  does 
extend  to  the  protection  of  the  lives,  health,  and  property  of  the  citizens, 
and  to  the  preservation  of  good  order  and  the  public  morals.  The  legislature 
cannot,  by  any  contract,  divest  itself  of  the  power  to  provide  for  these  ob- 
jects." And  Endicott,  J.,  delivering  the  opinion  of  the  court  in  Comnion- 
toeallh  v.  Intoxicating  Liquors,  115  Mass.  153,  155,  said:  "Every  such  law 
limits,  restrains,  impairs,  and  in  some  cases  destroys  the  uses  which  were 
previously  enjoyed  of  the  property  so  made  the  subject  of  legislation,  but 
the  extent  to  which  it  may  do  so  does  not  affect  the  validity  of  such  laws,  or 
their  equal  application  to  all  owners  of  such  property.  They  are  presumed 
to  be  passed  for  the  common  good,  and  to  be  necessary  for  the  protection  of 
the  public,  and  cannot  be  said  to  impair  any  right,  or  the  obligation  of  any 
contract,  or  to  do  any  injury  in  the  proper  legal  sense  of  these  terms." 

A  state  cannot,  however,  under  the  disguise  of  the  exercise  of  the  police 
power,  overthrow  or  impair  the  constitutional  rights  guaranteed  to  its  citizens. 
It  is  not  within  the  power  of  the  legislature,  under  the  pretense  of  exercising 
the  police  power  of  the  state,  to  enact  laws  not  necessary  to  the  preservation 
of  the  health  and  safety  of  the  community,  but  that  will  be  oppressive  and 
burdensome  on  the  citizens:  SlawjIUer-Iiouse  Cases,  16  Wall.  36;  Toledo  etc, 
Ji'tf  Co.  v.  City  o/  Jacksonville,  67  111.  37;  16  Am.  Rep.  611;  InUxdcatinj  Liquor 
Cases,  25  Kan.  751;  37  Am.  Rep.  284;  State  v.  FislLer,  52  Mo.  174;  Stale  v. 
Addington,  77  Id.  116;  In  re  Jacobs,  98  N.  Y.  98;  50  Am.  Rep.  636;  People  v. 
Marx,  99  N.  Y.  377;  52  Am.  Rep.  34.  In  the  case  last  cited,  Rapallo,  J., 
delivering  the  opinion  of  the  court,  said:  "No  proposition  is  now  more  firmly 
settled  than  that  it  is  one  of  the  fundamental  rights  and  privileges  of  every 
American  citizen  to  adopt  and  follow  euch  lawful  industrial  pursuit,  not 
injurious  to  the  community,  as  he  may  see  fit."  In  I/itoxicating  Liquor  Cases, 
tupra.  Brewer,  J.,  said:  "  I  do  not  think  the  legislature  can  prohibit  the  sale 
or  use  of  any  article  whose  sale  or  use  involves  no  danger  to  the  general  pub- 
lic." And  Wagner,  J.,  in  delivering  the  opinion  of  the  court  in  State  v. 
Fislier,  52  Mo.  174,  177,  said:  "A  law  which  unnecessarily  and  oppressively 
restrains  a  citizen  from  engaging  in  any  traffic,  or  disposing  of  his  property 
as  he  may  see  fit,  although  passed  under  the  specious  pretext  of  a  preserva- 
tive of  the  health  of  the  inhabitants,  would  be  void.  Such  a  law  would  be 
unreasonable,  and  would  deprive  the  people  of  the  rights  guaranteed  to  them 
by  the  organic  law  of  the  land." 

PowKB  OF  State  to  Reoulatk  ob  PROHiBrr  Sale  or  Ha'sutactukk  or 
InToxiCATiNO  LiQCORS.  — This  subject  is  discussed  at  length  in  the  note  to 
C<mmonv)eaitl^  v.  Kimball,  35  Am.  Dec.  331-339;  and  see  Slate  v.  Mugler,  29 
Kan.  252;  44  Am.  Rep.  634. 

OLEOMAROARntE.  — In  New  York  it  has  been  held  that  •  statute  which 
absolutely  prohibits  the  manufacture  or  sale  of  any  componnd  designed  as  a 
•ubstitute  for  butter,  however  wholesome,  valuable,  and  cheap  it  may  bo. 


646  Butler  v.  Chambers.  [Minn. 

and  however  openly  and  fairly  the  character  of  the  substance  maybe  avowed 
and  published,  is  unconstitutional,  because  the  prohibition  is  not  limited  to 
unwholesome  or  simulated  substitutes:  People  v.  Marx,  99  N.  Y.  377;  52 
Am.  Rep.  34;  People  v.  Arenaberg,  103  N.  Y.  388,  393;  57  Am.  Rep.  741; 
105  N.  Y.  123,  128;  59  Am.  Rep.  483;  see  also  NorthwesUrn  Mfg.  Co.  v. 
Wayne  Circuit  Judge,  58  Mich.  381;  55  Am.  Rep.  693.  Rapallo,  J.,  who  de- 
livered the  opinion  of  the  court  in  People  v.  Marx,  supra,  said:  "It  appears 
to  us  quite  clear  that  the  object  and  effect  of  the  enactment  under  considera- 
tion  were  not  to  supplement  the  existing  provisions  against  fraud  and  decep- 
tion by  means  of  imitations  of  dairy  butter,  but  to  take  a  further  and 
bolder  step,  and  by  absolutely  prohibiting  the  manufacture  or  sale  of  any 
article  which  could  be  used  as  a  substitute  for  it,  however  openly  and  fairly 
the  character  of  the  substitute  might  be  avowed  and  published,  to  drive  the 
substituted  article  from  the  nmrket,  and  protect  those  engaged  in  the  manu- 
facture of  dairy  products  against  the  competition  of  cheaper  substances 
capable  of  being  applied  to  the  same  uses  as  articles  of  food. "  And  after 
considering  the  limitations  upon  the  legislative  power  of  the  state  imposed 
by  the  state  constitution  and  the  constitution  of  the  United  States,  and  dis- 
cussing the  principles  established  by  the  state  and  national  courts  on  thia 
subject,  he  added:  "  Who  will  have  the  temerity  to  say  that  these  constitu- 
tional principles  are  not  violated  by  an  enactment  which  absolutely  prohibits 
an  important  branch  of  industry  for  the  sole  reason  that  it  competes  with  an- 
other, and  may  reduce  the  price  of  an  article  of  food  for  the  human  race." 

In  Missouri  a  statute  substantially  identical  with  that  of  New  York  passed 
upon  in  People  v.  Marx,  supra,  was  held  to  be  constitutional  and  valid:  State 
V.  Addington,  77  Mo.  110;  12  Mo.  App.  217.  The  defendant  in  that  case  sold 
oleomargarine  which  was  stamped  as  such,  and  did  not  pretend  that  the  ar- 
ticle was  butter.  At  the  trial  he  offered  to  prove  that  the  oleomargarine  sold 
was  healthful  and  nutritious,  and  in  all  respects  as  harmless  and  desirable  a 
commodity  as  pure  butter.  The  supreme  court  held  that  this  testimony  was 
properly  rejected;  that  the  constitutionality  of  the  statute  could  not  be 
tested  in  that  manner.  This  same  statute  was  held  not  to  be  violative  of  the 
constitution  of  the  United  States  in  In  re  BrosnaJian,  18  Fed.  Rep.  62.  In  a 
late  case  in  Pennsylvania  a  similar  statute  was  held  to  be  constitutional, 
Gordon,  J.,  dissenting:  Powell  v.  CommonvxaUh,  114  Pa.  St.  265;  60  Am.  Rep. 
350.  The  following  are  the  points  decided  in  that  case:  The  test  of  the  rea- 
sonableness of  a  police  regulation  prohibiting  the  making  and  vending  of  a 
particular  article  of  food  is  not  alone  whether  it  is  in  part  unwholesome  and 
injurious.  If  an  article  of  food  is  of  such  a  character  that  few  persons  will  eat 
it  knowing  its  real  character;  if  at  the  same  time  it  is  of  such  a  nature  that 
it  can  be  imposed  upon  the  public  as  an  article  of  food  which  is  in  common 
use,  and  against  which  there  is  no  prejudice;  and  if  in  addition  to  this  there 
is  probable  ground  for  believing  that  the  only  way  to  prevent  the  public  from 
being  defrauded  into  purchasing  the  counterfeit  article  for  the  genuine  is  to 
prohibit  altogether  the  manufacture  and  sale  of  the  former,  —  then  such  a  pro- 
hibition may  stand  as  a  reasonable  police  regulation,  although  the  article  pro- 
hibited is  in  fact  innocuous,  and  although  its  production  might  not  be  found 
prejudicial  to  the  public,  if  in  buying  it  they  could  distinguish  it  from  the 
production  of  which  it  is  the  imitation.  The  fact  that  scientific  experts  may 
pronounce  a  manufactured  article  intended  for  human  food  to  be  wholesome 
and  not  injurious,  and  that  in  a  pure  state  it  may  be  thus  good  for  food,  does 
not  render  it  incompetent  for  the  legiislature  to  prohibit  the  manufacture  and 
lale  of  the  article,  if  in  its  judgment  it  be  necessary  to  the  protection  of  the 


Nov.  1886.]  Butler  v.  Chambers.  647 

lives,  health,  and  property  of  the  citizens,  and  to  the  preservation  of  good 
order  and  the  public  morals. 

The  statute  under  which  this  case  arose  was  held  to  fall  within  the  police 
power  of  the  state,  which  was  described  as  the  power  vested  in  the  legisla- 
ture by  the  constitution  to  make,  ordain,  and  establish  all  manner  of  whole- 
some and  reasonable  laws,  statutes,  and  ordinances,  either  with  penalties  or 
without,  not  repugnant  to  the  constitution,  as  they  shall  judge  to  be  for  the 
good  and  welfare  of  the  commonwealth  and  the  people  of  the  same. 

Gordon,  J.,  delivered  a  dissenting  opinion,  in  which  he  maintained  that 
the  act  in  question  was  not  only  improvident  and  unreasonable,  but  also 
unconstitutional,  and  evidently  passed  for  the  welfare  of  dairymen,  without 
regard  to  the  welfare  of  the  balance  of  the  people.  He  considered  that  the 
act  could  not  properly  be  regarded  as  a  police  regulation,  because  it  was  not 
alleged  that  the  prohibited  article  was  in  the  slightest  degree  injurious  to  the 
weUare  or  happiness  of  the  people  of  the  commonwealth.  In  the  case  of  Stale 
V.  Addirif/ion,  77  Mo.  110,  Sherwood,  J.,  delivering  the  opinion  of  the  court, 
referring  to  the  Missouri  statute,  said:  ' '  The  central  idea  of  the  statute  before 
us  seems  very  manifest;  it  was,  in  our  opinion,  the  prevention  of  facilities  for 
selling  or  manufacturing  a  spurious  article  of  butter,  resembling  the  genuine 
article  so  closely  in  its  external  appearance  as  to  render  it  easy  to  deceive 
purchasers  into  buying  that  which  they  would  not  buy  but  for  the  deception. 
The  history  of  legislation  on  this  subject,  as  well  as  the  phraseology  of  the  act 
itself,  very  strongly  tend  to  confirm  this  view.  If  this  was  the  purpose  of 
the  enactment  now  under  discussion,  we  discover  nothing  in  its  provisions 
which  enables  us,  in  the  light  of  the  authorities,  to  say  that  the  legislature, 
when  passing  the  act,  exceeded  the  power  confided  to  that  department  of 
the  government;  and  unless  we  can  say  this,  we  cannot  bold  the  act  as  being 
anything  less  than  valid. " 

In  People  v.  Aremberg,  103  N.  Y.  388,  57  Am.  Rep.  741,  105  N.  Y.  123,  59 
Am.  Rep.  483,  the  prosecution  was  had  under  section  7  of  chapter  183,  New 
York  La ws  of  1 885,  which  provided  as  follows :  ' '  No  person,  by  himself,  or  hia 
agents,  or  servants,  shall  render  or  manufacture  out  of  any  animal  fat,  or 
animal  or  vegetable  oils  not  produced  from  unadulterated  milk  or  cream  from 
the  same,  any  article  or  product  in  imitation  or  semblance  of,  or  designed  to 
take  the  place  of,  natural  butter  or  cheese  produced  from  pure,  unadulterated 
milk  or  cream  of  the  same,  nor  shall  he  or  they  mix,  compound  with,  or  add 
to  milk,  cream,  or  butter,  any  acids,  or  other  deleterious  substance,  or  any 
animal  fats,  or  animal  or  vegetable  oils  not  produced  from  milk  or  cream, 
with  design  or  intent  to  render,  make,  or  produce  any  article  or  substance, 
or  auy  human  food,  in  imitation  or  semblance  of  natural  butter  or  cheese;  nor 
•hall  he  sell,  keep  for  sale,  or  offer  for  sale,  any  article,  substance,  or  com- 
pound made,  manufactured,  or  produced  in  violation  of  the  provisions  of  this 
section,  whether  such  article,  substance,  or  compound  shall  be  made  or  pro- 
duced in  this  state,  or  in  any  other  state  or  country."  The  judgment  on  the 
first  trial  was  reversed  for  error  of  the  trial  judge  in  submitting  to  the  jury 
the  bare  question  whether  the  defendant  had  manufactured  or  sold  oleomar- 
garine not  made  from  milk  or  cream,  and  in  omitting  the  essential  question 
whether  it  was  manufactured  in  imitation  or  semblance  of  butter.  On  the 
second  appeal,  the  court  sustained  the  constitutionality  of  the  section  quoted 
above,  Rapallo,  J.,  in  delivering  the  opinion  of  the  court,  saying:  "We  are 
of  opinion  that  such  artificial  coloring  of  oleomargarine  for  the  mere  purpose 
of  making  it  resemble  dairy  butter  comes  within  the  statutory  prohibition 
against  imitation,  and  that  such  prohibition  is  within  the  power  of  the  legi^ 


648  Butler  v.  Chambers,  [Minn. 

latore,  and  rests  upon  the  same  principle  which  would  sustain  a  prohibition 
of  coloring  winter  dairy  butter  for  the  purpose  of  enhancing  its  market  price 
by  making  it  resemble  summer  dairy  butter,  should  the  legislature  deem  such 
a  prohibition  necessary  or  expedient." 

In  that  case  it  was  contended  on  behalf  of  the  defendant  that  oleomar- 
garine must  resemble  butter,  and  if  the  manufacture  of  any  article  made  in 
imitation  or  semblance  of  butter  is  prohibited,  the  manufacture  of  oleomar- 
garine is  made  unlawful.  But  Bapallo,  J.,  replying  to  this  contention,  said: 
"We  do  not  think  that  this  result  follows.  The  statutory  prohibition  is 
aimed  at  a  designed  and  intentional  imitation  of  dairy  butter  in  manufac- 
turing the  new  product,  and  not  at  a  semblance  in  qualities  inherent  in  the 
cu*ticle3  themselves  and  common  to  both.  If  in  their  essential  ingredients 
or  elements  the  two  articles  were  so  identical  that  they  must  necessarily  pre- 
sent the  same  appearance  without  resort  to  any  artificial  means  to  produce 
the  resemblance,  it  is  argued  on  the  part  of  the  prosecution  that  in  that  case 
it  would  be  competent  for  the  legislature  to  require  that  some  means  be  re- 
sorted to  by  the  manufacturers  to  distinguish  the  new  article  from  the  old; 
that  the  legislature  has  attempted  to  do  this  by  requiring  that  the  packages 
in  which  oleomargarine  is  sold  be  distinctly  marked,  and  by  other  means;  [but 
that  if  all  these  precautions  fail  to  prevent  deception  of  consumers,  then  it  is 
lawful  to  require  that  in  the  manufacture  of  the  substance  itself  some  meas- 
are  should  be  adopted  to  make  it  distinguishable  in  appearance  from  the 
ordinary  dairy  butter,  such  as  by  giving  it  a  different  color,  or  some  other 
device.  We  do  not  deem  it  necessary  now  to  pass  upon  this  point,  for  in 
the  evidence  of  this  case  there  was  sufficient  to  authorize  the  jury  to  find 
that  the  oleomargarine  sold  by  the  defendant,  and  that  which  he  had  ijx  his 
store  exposed  for  sale,  had  by  artificial  means,  not  essential  or  incident  to 
the  manufacture  of  the  article,  but  resorted  to  for  the  mere  purpose  of 
imitation,  been  made  to  resemble  dairy  butter;  that  it  was  yellow  in  appear- 
ance, and  looked  like  butter.  It  was  known  to  the  defendant  to  be  oleomar- 
garine, and  was  sold  and  offered  for  sale  by  him  as  such." 

Replying  to  the  argument  that  the  substance  sold  was  wholesome  and  in- 
nocuous, and  that  its  manufacture  and  sale  could  not,  therefore,  be  prohib- 
ited, the  learned  judge  said:  "Assuming,  as  is  claimed,  that  butter  made 
from  animal  fat  or  oil  is  as  wholesome,  nutritious,  and  suitable  for  food  as 
dairy  butter,  that  it  is  composed  of  the  same  elements  and  is  substantially 
the  same  article,  except  as  regards  its  origin,  and  that  it  is  cheaper,  and  that 
it  would  be  a  violation  of  the  constitutional  rights  and  liberties  of  the  peo- 
ple to  prohibit  them  from  manufacturing  or  dealing  in  it,  for  the  mere  pur- 
pose of  protecting  the  producers  of  dairy  butter  against  competition,  yet 
it  cannot  be  claimed  that  the  producers  of  butter  made  from  animal  fat  or 
oils  have  any  constitutional  right  to  resort  to  devices  for  the  purpose  of 
making  their  product  resemble  in  appearance  the  more  expensive  article 
known  as  dairy  butter,  or  that  it  is  beyond  the  power  of  the  legislature  to 
enact  such  laws  as  they  may  deem  necessary  to  prevent  the  simulated  arti- 
cle being  put  upon  the  market  in  such  a  form  and  manner  aa  to  be  calculated 
to  deceive.  If  it  possesses  the  merits  which  are  claimed  for  it,  and  is  iimoc- 
uous,  those  making  and  dealing  in  it  should  be  protected  in  the  enjoyment 
of  liberty  in  those  respects;  but  they  may  legally  be  required  to  sell  it  for 
and  as  what  it  actually  is,  and  upon  its  own  merits,  and  are  not  entitled  to 
the  benefit  of  any  additional  market  value  which  may  be  imparted  to  it  by 
resorting  to  artificial  means  to  make  it  resemble  dairy  butter  in  appearance. 
It  may  be  butter,  but  it  is  not  butter  made  from  cream,  and  the  difference  in 


Nov.  1886.]  Butler  v.  Chambers.  649 

cost  or  market  value,  if  no  other,  would  make  it  a  fraud  to  pasa  off  oae 
article  for  the  other."    See  also  People  v.  Waterhury,  44  Hun,  493. 

An  act  which  prohibits  the  sale  of  oleomargarine  without  having  it  stamped 
is  constitutional  and  valid:  Pierce  v.  State,  63  Md.  592;  Palmer  v.  State,  39 
Ohio  St.  236;  48  Am.  Rep.  429;  State  v.  Dunbar,  13  Or.  591.  In  the  case  last 
cited  it  was  held  that  the  charge  of  offering  to  sell  was  made  out,  if  the  de- 
fendant kept  the  article  described  in  the  indictment  without  any  mark 
plainly  distinguishing  it  from  the  true,  genuine  dairy  products,  in  his  com- 
mon salesroom,  with  other  produce  that  be  was  dealing  in,  and  publicly  ex- 
posed and  exhibited  the  same  with  intent  to  offer  it  for  sale.  And  an  act 
making  the  possession  of  an  article  conclusive  evidence  of  an  intent  to  seU 
the  same  is  not  unconstitutional:  People  v.  Mahaney,  41  Hun,  26;  People  v. 
Hill,  44  Id.  472. 

Mile.  —  The  power  of  the  legislature  to  prohibit  the  sale  of  adulterated 
milk  has  been  universally  sustained.  And  the  legislature  may  make  it  a 
criminal  offense  to  sell  pure  milk  mixed  with  pure  water,  although  it  could 
not  prohibit  the  sale  of  either  article  when  sold  separately.  The  legislature 
may  determine  what  reasonable  laws  ought  to  be  enacted  to  protect  the  pub- 
lic against  fraud  and  imposition,  and  may  adapt  the  protection  to  the  nature 
of  the  case.  Such  laws  deprive  no  man  of  his  property,  or  of  any  right  to 
pursue  an  honest  calling:  Commonwealth  v.  Fan-en,  9  Allen,  489;  Common- 
wealth  V.  Waite,  11  Id.  264;  Commonwealth  v.  Evans,  132  Mass.  11;  Common- 
wealth V.  Bowers,  140  Id.  483;  State  v,  Newton,  45  N.  J.  L.  469;  Polinshj  v. 
People,  73  N.  Y.  65;  People  v.  Cipperly,  101  Id.  634;  People  v.  West,  44  Hun, 
162;  State  v.  Smith,  10  R.  I.  258;  State  v.  Smyth,  14  Id.  100;  51  Am.  Rep. 
344;  State  v.  Groves,  Sup.  Ct.  R.  I.,  Dec,  1885.  And  a  municipal  ordinance 
prohibiting  the  bringing  of  diluted  milk  into  a  city  b  within  the  scope  of 
sanitary  regulations,  which  the  legislature  may  constitutionally  confer  oa 
boards  of  health  the  power  to  enact:  Polinskyv.  People,  supra. 

Opium.  —  The  legislature  of  a  state,  in  the  exercise  of  the  police  power,  may 
prohibit  the  selling  or  giving  away  of  opium  by  any  person  except  druggists 
and  apothecaries,  and  may  provide  that  druggists  and  apothecaries  shall  sell 
it  only  on  the  prescription  of  legally  practicing  physicians:  State  v.  Ah  Cliew, 
10  Nev.  50;  40  Am.  Rep.  488;  Ex  parte  Yung  Jon,  28  Fed.  Rep.  308.  Haw- 
ley,  J.,  delivering  the  opinion  of  the  court  in  the  former  case,  said:  "It  is 
not  denied  that  the  indiscriminate  use  of  opium  by  smoking,  or  otherwise, 
tends,  in  a  much  greater  degree,  to  demoralize  the  persons  using  it,  to  dull 
the  moral  senses,  to  foster  vice,  and  produce  crime,  than  the  sale  of  intoxicat- 
ing drinks.  If  such  is  its  tendency,  it  should  not  have  unrestrained  license 
to  produce  such  disastrous  results.  A  law  prohibiting  the  indiscriminate 
traffic  in  this  poisonous  drug,  and  placing  the  trade  under  such  regulations 
as  to  prevent  abuses  in  its  sale,  violates  no  constitutional  restraints.  Under 
the  police  power,  recognized  in  theory,  and  asserted  in  the  practice  of  every 
state  in  the  Union  in  the  interest  of  good  morals,  the  good  order  and  peace  of 
society,  for  the  prevention  of  crime,  misery,  and  want,  the  legislature  has 
authority  to  place  such  restrictions  upon  the  sale  or  disposal  of  opium  as  will 
mitigate,  if  not  suppress,  its  evils  to  society." 

Cotton  in  tuk  Sskd.  —  In  Mamjan  v.  Slate,  76  Ala.  60,  it  was  held  that  a 
statute  making  it  unlawful  for  any  one  to  sell  or  offer  for  sale,  within  certain 
counties  and  boundaries  speciOed,  any  cotton  in  the  seed,  or  elsewhere  to 
buy,  sell,  etc.,  any  cotton  in  the  seed  raised  within  said  counties,  was  a  le- 
gitimate exercise  of  the  police  power,  and  not  an  unauthorized  interference 


650  Butler  v.  Chambers.  [Minn. 

with  the  rights  of  private  property,  and  that  it  was  not  in  violation  of  the 
fonrteenth  amendment  to  the  constitution  of  the  United  States. 

Prohibitino  Sale  op  Articles  near  Camp-meetings.  —  Statutes  prohib* 
iting  any  person  from  carrying  on  any  unusual  business  within  a  specified 
distance  of  any  public  assembly  convened  for  religious  worship,  without  the 
approval  or  consent  of  the  managers  of  such  assembly,  are  not  unconsti- 
tional:  Commonwealth  v.  Bearse,  132  Mass.  450;  42  Am.  Rep.  450;  State  v. 
Cote,  58  N.  H.  240.  But  in  Commonwealth  v.  Bacon,  13  Bush,  210,  26  Am. 
Rep.  189,  a  statute  forbidding  any  person  to  carry  on  the  stabling  business 
within  a  given  distance  of  the  grounds  of  a  specified  agricultural  society 
during  the  continuance  of  its  fairs,  and  imposing  a  penalty  for  any  breach 
of  the  law,  was  held  to  be  an  unconstitutional  interference  with  the  right  of 
enjoyment  of  private  property. 

Sale  of  Patented  Article.  —  The  fact  that  an  article  is  manufactured 
and  sold  under  a  patent  issued  by  the  United  States  does  not  deprive  the 
legislature  of  a  state,  in  the  exercise  of  the  police  power,  of  the  right  to 
regulate  or  prohibit  the  manufacture  or  sale  of  such  article  within  the  state. 
The  patent  laws  of  the  United  States  confer  upon  the  patentee  no  authority 
to  manufacture  and  sell  the  patented  article  in  violation  of  the  laws  of  a 
state:  Patterson  v.  Kentuchf,  97  U.  S.  501;  Webber  v.  Virginia,  103  Id.  344; 
In  re  Brosnahav,  18  Fed.  Rep.  62;  Statev.  Telephone  Co.,  36  Ohio  St.  227;  38 
Am.  Rep.  583;  Palmer  v.  State,  39  Ohio  St.  236;  48  Am.  Rep.  429.  Mr.  Justice 
Harlan,  in  delivering  the  opinion  of  the  court  in  Patterson  v.  Keritucky,  97 
U.  S.  505,  said:  "The  Kentucky  statute  being  then  an  ordinary  police  regula- 
tion for  the  government  of  those  engaged  in  the  internal  commerce  of  that 
state,  the  only  remaining  question  is,  whether,  under  the  operation  of  the 
federal  constitution  and  the  laws  of  Congress,  it  is  without  effect  in  cases 
where  the  oil,  although  condemned  by  the  state  as  unsafe  for  illuminating 
purposes,  has  been  made  and  prepared  for  sale  in  accordance  with  a  discovery 
for  which  letters  patent  had  been  granted.  We  are  of  opinion  that  the 
right  conferred  upon  the  patentee  and  his  assigns  to  use  and  vend  the  cor- 
poreal thing  or  article,  brought  into  existence  by  the  application  of  the 
patented  discovery,  must  be  exercised  in  subordination  to  the  police  regula- 
tions which  the  state  established  by  the  statute  of  1874.  It  is  not  to  be  sup- 
posed that  Congress  intended  to  authorize  or  regulate  the  sale  within  a  state 
of  tangible  personal  property  which  that  state  declares  to  be  unfit  and  unsafe 
for  use,  and  by  statute  has  prohibited  from  being  sold  or  offered  for  sale 
within  her  limits."  And  Upson,  J,,  in  delivering  the  opinion  to  the  court 
in  Palmer  v.  State,  supra,  said:  "The  patent  laws  of  the  United  States  give 
to  inventors  the  exclusive  right  to  their  inventions,  but  do  not  give  to  them 
the  right  to  disregard  laws  enacted  to  promote  the  welfare  of  the  whole  peo- 
ple. The  state  cannot  discriminate  against  patented  articles  by  imposing 
upon  their  sale  conditions  and  restrictions  not  placed  upon  the  sale  of  other 
similar  articles;  but  the  sale  of  all  articles  like  those  now  under  considera- 
tion, whether  patented  or  not,  may  be  restricted,  regulated,  or  forbidden 
whenever  the  public  good  requires  such  restriction,  regulation,  or  prohi- 
bition." 

Act  PROHXBiTtNo  Manxtfacturb  of  Cigars  in  Tenement  Houses,  in 
the  cities  of  New  York  and  Brooklyn,  was  held  to  be  unconstitutional  in  In 
re  Jacobs,  98  N.  Y.  98;  50  Am.  Rep.  636. 


Nov.  1886.]  Stewaet  v.  Smith.  651 

Stewart  v.  Smith. 

rSO  MiKNESOTA,  82.] 
PimCHASE-MONKT  MORTGAGE,   EXECUTED  CONTEMPORANEOUSLT  WITH  DeED 

or  Purchase,  whether  to  the  vendor  or  to  a  third  person  who  advanced 
the  purchase-money  paid  to  the  vendor,  takes  precedence  over  the  lien 
of  a  prior  judgment  against  the  mortgagor. 
Died  and  Mortgage  need  not  be  Executed  at  Same  Moment,  nor  even 
on  the  same  day,  to  make  them  contemporaneous,  provided  they  were 
parts  of  one  continuous  transaction,  and  so  intended  to  be,  so  that  the 
two  instruments  should  be  given  contemporaneous  operation  in  order  to 
promote  the  intent  of  the  parties. 

Action  to  determine  adverse  claims  to  land.  There  wa» 
judgment  for  the  plaintiflf,  and  the  defendants  appealed  from 
an  order  denying  a  new  trial. 

/.  M.  Oilman,  for  the  appellants. 

Shaw  and  Cray,  for  the  respondent. 

By  Court,  Mitchell,  J.  Both  parties  claim  title  through 
Hiram  Burlingham, — defendants  under  an  execution  sale  on  a 
judgment  against  Burlingham,  rendered  and  docketed  in  Oc- 
tober, 1859;  plaintiff  under  a  foreclosure  sale  on  a  mortgage 
from  Burlingham  to  one  Sidle,  executed  and  recorded  Septem- 
ber 16,  1861.  The  facts  regarding  the  execution  of  this  mort- 
gage, as  found  by  the  court  upon  undisputed  evidence,  are,  in 
substance,  that  Burlingham,  being  desirous  of  entering  this 
land  by  pre-emption,  applied  to  Sidle  for  money  with  which  to 
make  the  entry;  that  it  was  agreed  between  them  that  Sidle 
should  lend  Burlingham  the  money  or  land-warrant  with 
which  to  make  the  entry;  and  that,  as  security  therefor,  Bur- 
lingham should  give  Sidle  a  purchase-money  mortgage  on  the 
land  when  entered;  that  pursuant  to  the  agreement  Sidle 
loaned  Burlingham  the  funds  with  which  to  enter  the  land; 
that  thereupon  Burlingham  immediately  went  from  his  home 
(both  parties  resided  in  Minneapolis,  eighty  or  ninety  miles 
distant  from  the  land-office)  to  Forest  City,  where  the  land- 
office  at  which  the  entry  was  to  be  made  was  situated,  and 
apon  his  arrival,  on  Friday,  September  13th,  entered  the  land, 
paying  therefor  with  the  funds  loaned  him  by  Sidle,  ani 
immediately  started  back  for  his  home,  where  he  arrived  on 
Sunday,  September  15th;  that  on  Monday,  September  16th, 
pursuant  to  the  agreement  above  referred  to,  he  and  his  wife 
executed  to  Sidle  the  mortgage  in  question  as  security  for  the 
money  so  loaned,  and  interest,  according  to  the  previous  agree- 
ment of  the  parties. 


652  Stewart  v.  Smith.  [Minn. 

Upon  this  state  of  facts,  it  is  quite  clear  that  the  lien  of 
Sidle's  mortgage  had  precedence  over  the  lien  of  defendant's 
judgment.  This  is  so  under  the  familiar  doctrine,  more  than 
once  approved  hy  this  court,  that  a  purchase-money  mortgage, 
executed  at  the  same  time  with  the  deed  of  purchase,  takes 
precedence  of  any  other  claim  or  lien  arising  through  the 
mortgagor.  It  will  take  the  precedence  whether  executed  to  the 
vendor  or  to  a  third  person  who  advanced  the  purchase-money 
which  was  paid  to  the  vendor:  Jones  v.  Taintor,  15  Minn.  423 
(512);  Jacoby  v.  Crowe,  16  Id.  93;  4  Kent's  Com.  *39;  Wash- 
burn  on  Real  Property,  *176;  Jones  on  Mortgages,  416. 

The  case  of  Jones  v.  Taintor,  supra,  is  decisive  of  the  present 
case,  the  facts  in  both  being  almost  identical.  An  attempt  is 
made  to  distinguish  the  two  cases,  because  in  the  former  the 
claim  was  the  right  of  dower  of  the  widow  of  the  mortgagor, 
while  in  the  present  case  it  is  the  lien  of  judgment  against  the 
mortgagor.  There  is  no  room  for  any  such  distinction.  The 
doctrine  which  gives  precedence  in  such  cases  to  a  purchase- 
money  mortgage  is  one  of  equity,  and  not  of  statutory  origin, 
and  applies  to  any  claim  to  or  lien  upon  the  property  arising 
through  the  mortgagor. 

The  present  case  is  also  sought  to  be  taken  out  of  the  opera- 
tion of  the  rule  because  the  purchase  of  the  land  and  the 
execution  of  the  mortgage  were  not  simultaneous,  Burlingham 
having  entered  the  land  and  obtained  his  certificate  of  entry 
on  Friday,  September  13th,  while  the  mortgage  to  Sidle  was 
not  executed  until  Monday,  September  16th.  The  rule  as 
generally  stated  in  the  books  is,  that  to  give  a  purchdse- 
money  mortgage  this  precedence  it  must  have  been  executed 
simultaneously,  or  at  the  same  time,  with  the  deed  of  pur- 
chase. Some  ground  for  a  narrow  and  literal  construction  of 
this  language  is  furnished  by  the  fact  that  the  reason  usually 
assigned  for  the  doctrine  is  the  technical  one  of  the  mere 
transitory  seisin  of  the  mortgagor,  rather  than  the  superior 
equity  which  the  mortgagee  has  to  be  paid  the  purchase- 
money  of  the  land  before  it  shall  be  subjected  to  other 
claims  against  the  purchaser.  But  it  is  evident,  both  upon 
principle  and  authority,  that  what  is  meant  by  this  statement 
of  the  rule  is  not  that  the  two  acts  —  the  execution  of  the 
deed  of  purchase  and  the  execution  of  the  mortgage — should 
be  literally  simultaneous.  This  would  be  almost  an  impossi- 
bility. Some  lapse  of  time  must  necessarily  intervene  between 
the  two  acts.     An  examination  of  the  cases  will  show  that  the 


Nov.  1886.]  Stewart  v.  Smith.  653 

real  test  is  not  whether  the  deed  and  mortgage  were  in  fact 
executed  at  the  same  instant,  or  even  on  the  same  day,  but 
whether  they  were  parts  of  one  continuous  transaction,  and  so 
intended  to  be,  so  that  the  two  instruments  should  be  given 
contemporaneous  operation  in  order  to  promote  the  intent  of 
the  parties:  1  Washburn  on  Real  Property,  *178;  Wheatley  v. 
Calhoun,  12  Leigh,  264;  37  Am.  Dec.  654;  Love  v.  Jones,  4 
Watts,  465;  Snyder's  Appeal,  91  Pa.  St.  477.  Hence  it  will  be 
found  that  in  some  of  the  cases  the  fact  that  the  mortgage  was 
executed  pursuant  to  an  agreement  made  prior  to  the  execu- 
tion of  the  deed  of  purchase  has  been  the  controlling  consid- 
eration upon  which  the  mortgage  has  been  given  precedence, 
although  not  in  fact  executed  until  some  time  after  the  execu- 
tion of  the  deed.  The  reason  is,  that  such  a  state  of  facts 
would  show  that  both  acts  were  but  parts  of  the  same  contin- 
uous transaction.  As  evidence  of  the  fact,  such  previous 
agreement  would  have  equal  probative  force,  although  it  might 
not  be  enforceable,  because  not  in  writing,  and  within  the 
statute  of  frauds.  Even  if  such  agreement  while  executory  was 
not  enforceable,  yet  when  once  executed  by  the  execution  of 
the  mortgage,  it  becomes  as  effectual  a&  if  originally  in  writing, 
and  in  equity  will  be  deemed  (if  the  rights  of  no  innocent 
purchaser  have  intervened)  as  taking  effect  by  relation  as  of 
the  date  of  the  agreement. 

The  facts  bring  the  case  clearly  within  the  rule.  There  was 
a  previous  agreement  that  Burlingham  should,  after  entering 
the  land,  give  Sidle  a  purchase-money  mortgage  upon  it.  The 
mortgage  was  subsequently  executed  in  pursuance  of  that 
agreement,  and  as  soon  after  the  entry  of  the  larid  as  was 
reasonably  practicable.  Both  acts  were  evidently  intended 
by  the  parties  as  parts  of  a  single  continuous  transaction. 

There  is  no  force  to  the  suggestion  that  one  "forty"  of  the 
land  entered  was  not  included  in  the  mortgage.  If  Sidle, 
either  by  mistake  or  intentionally,  took  security  for  the  pur- 
chase-money on  only  part  of  the  land  purchased,  defendants 
certainly  have  no  ground  of  complaint. 

As  these  views  are  necessarily  decisive  of  the  case,  it  is  un- 
necessary to  consider  any  of  the  other  points  discussed  by 
counsel.  .• 

Order  affirmed.  

f  (XBCHAaB-MOMiT  MoBTOAOS,  Prioritt  oi:  See  Turk  t.  Funk,  SO  Am. 
Rep.  771;  AnkeUl  v.  Conoerte,  91  Am.  Deo.  116;  Chrid^  v.  Dyer,  81  Id.  493» 
Bote  497. 


654  Renneb  v.  Canfield.  [Minn. 

Kenner  V,  Canfield. 

[36  Minnesota,  90.J 
Pabtt  is  Liablk  only  fob  Peoximate  and  Direct  Resitlts  of  his 
Acts.  Where  person  Bhoots  a  dog  in  the  highway,  and  a  woman  stand* 
ing  near,  whom  he  does  not  see  at  the  time  be  fires,  ia  so  badly  startled 
and  frightened  by  the  report  of  the  gun  as  to  seriously  affect  her  health, 
the  killing  of  the  dog  is  in  no  sense  the  proximate  cause  of  the  injury  to 
the  woman. 

Appeal  from  an  order  denying  the  defendant  a  new  trial. 
The  opinion  states  the  facts. 

H.  Jenkins,  for  the  appellant. 

Clappy  Woodard,  and  Come,  for  the  respondent. 

By  Court,  Mitchell,  J.  As  the  defendant  and  one  Ward 
were  driving  along  the  highway  in  front  of  plaintiff's  premises, 
a  dog  belonging  to  the  plaintiff's  father  (and  which  happened 
to  be  at  that  time  on  plaintiff's  premises)  rushed  out  upon  the 
highway,  and  attacked  Ward's  dog.  Defendant  jumped  out 
of  his  wagon  with  his  gun,  whereupon  the  dog  of  Renner,  Sen., 
retreated  towards  or  upon  plaintiff's  premises.  While  it  was 
thus  retreating,  defendant  fired  at  and  killed  it.  This  dog  was 
accustomed  to  attack  and  worry  the  dogs  of  passing  travelers 
on  the  highway,  but  there  is  no  evidence  that  it  ever  attacked 
persons.  When  defendant  shot  the  dog,  he  stood  in  the  high- 
way, about  175  feet  from  the  plaintiff's  house,  which  was 
situated  on  elevated  ground  some  distance  back  from  the  road. 
The  dog,  when  shot,  was  some  150  feet  from  the  house.  Plain- 
tiff's wife  was  standing  at  the  pump,  at  or  near  the  side  of 
the  house,  and  saw  the  defendant  shoot,  but  defendant  did 
not  see  her,  and  was  not  aware  of  her  presence,  the  view  from 
the  highway  to  the  house  being  more  or  less  intercepted  by 
intervening  trees.  Mrs.  Renner,  being,  owing  to  her  pregnancy, 
in  a  delicate  state  of  health,  and  her  nerves  very  sensitive, 
was  so  startled  and  frightened  as  to  seriously  affect  her  health. 
Her  fright  seems  to  have  been  largely  caused,  or  at  least 
greatly  aggravated,  by  the  mistaken  impression  that  defend- 
ant aimed  his  gun  towards  her,  when  in  fact  it  was  aimed  at 
right  angles  to  the  direction  where  she  was  standing.  For 
the  damages  resulting  from  this  injury  to  his  wife's  health, 
plaintiff  brings  this  action. 

It  is  very  diflBcult  to  determine,  either  from  the  complaint 
or  the  evidence  introduced,  or  from  the  charge  of  the  court, 


Nov.  1886.]  Renner  v.  Canfield.  655 

the  exact  theory  upon  which  this  action  was  brought,  tried, 
or  submitted  to  the  jury,  —  whether  the  gravamen  of  defend- 
ant's alleged  tort  was  the  killing  of  the  dog,  or  negligence  in 
firing  off  a  gun  in  dangerous  proximity  to  a  human  residence. 
The  court  did,  however,  expressly  instruct  the  jury  that  the 
shooting  of  this  dog  by  defendant  was  unlawful.  He  also 
instructed  them  that  a  person  is  liable  for  all  the  consequences 
"which  flow  naturally  and  directly  from  his  acts";  and  then 
left  it  to  them  to  decide,  as  a  question  of  fact,  whether  the 
injuries  to  plaintiff's  wife  were  the  "natural  result  of  defend- 
ant's acts." 

From  this  the  jury  could,  and  naturally  would,  understand 
that  defendant  might  be  liable  in  this  action,  from  the  mere 
fact  that  the  killing  of  the  dog  was  unlawful.  We  think  a 
verdict  for  plaintiff  could  not  be  sustained  on  any  such  theory 
of  the  case.  It  is  elementary  that  a  man  is  liable  only  for  the 
proximate  or  immediate  and  direct  results  of  his  acts.  In 
strict  logic,  it  may  be  said  that  he  who  is  the  cause  of  loss 
should  be  responsible  for  all  the  losses,  whether  proximate  or 
remote,  which  flow  from  his  acts.  But  in  the  practical  work- 
ings of  society,  any  such  rule  would  be  both  impracticable  and 
unjust,  and  therefore  the  law  looks  only  to  direct  and  proxi- 
mate results,  or,  as  the  rule  is  sometimes  stated,  "  Whoever 
does  a  wrongful  act  is  answerable  for  the  consequences  that 
may  ensue  in  the  ordinary  and  natural  course  of  events." 
There  can  be  no  fixed  rule  upon  the  subject  that  can  be  ap- 
plied to  all  cases.  Much  must  depend  upon  the  circumstances 
of  each  particular  case.  But  in  this  case  it  is  very  clear  to  us 
thitt  the  killing  of  this  dog  was  in  no  sense  the  proximate 
cause  of  the  injury  to  plaintiff's  wife.  The  act  in  itself  was 
not  a  tort  of  any  kind  against  plaintiff,  as  the  dog  was  not 
his  property.  The  injury  to  the  woman  would  have  been  pre- 
sumably the  same  whether  the  killing  of  the  dog  was  lawful 
or  unlawful,  and  whether  the  defendant  had  fired  at  the  dog, 
or  at  a  bird  in  the  air.  If  the  acts  of  defendant  amounted  to 
any  tort  which,  in  any  possible  view  of  the  case,  could  be  held 
to  be  the  proximate  cause  of  the  injuries  complained  of,  the 
gist  of  it  must  be  negligence  in  shooting  in  such  proximity 
to  a  human  residence  as  might  naturally  and  reasonably  be 
anticipated  to  be  liable  to  injure  the  inmates  by  fright  or 
otherwise.  We  are  by  no  means  prepared  to  say  that,  upon 
the  evidence,  a  verdict  for  plaintiff  could  be  sustained  even 


^56  Whitney  v.  Salter.  [Minn. 

upon  that  ground.     But  it  is  enough  here  to  say  that  the  case 
was  not  submitted  to  the  jury  on  any  such  theory. 
Order  reversed  and  new  trial  ordered. 


DniEcr  AND  Proxuiate  Damages  only  arb  Recoverable:  See  Wallace 
T.  Ah  Sam,  60  Am.  Rep.  534;  Mitchell  v.  darke,  60  Id,  529;  Jonea  v.  Call,  60 
Id.  416;  SitUm  v.  MacdonaM,  60  Id.  484,  note  488;  WilUngham  v.  Hooven,  58 
Id.  435;  Pennington  v.  Western  Union  T.  Co.,  56  Id.  367;  Brigham  v.  Carlisle, 
56  Id.  28;  WaJceman  v.  Wheeler  <fc  W.  M.  Co.,  54  Id.  676;  Lowery  v.  Man- 
hattan R'y  Co.,  52  Id.  12;  WMU  v.  Conly,  52  Id.  154,  note  157,  where  other 
cases  in  that  series  are  collected;  Seely  v.  Alden,  100  Am.  Dec.  642,  note  645; 
Peshine  v.  Shepperson,  94  Id.  468,  note  477,  where  other  cases  in  that  serier 
are  collected. 


Whitney  v.  Salter. 

[.<^  Minnesota,  103.J 
PURCHASB    07  ENCUMBRANCE    UPON,   OR  OF  ADVERSE  TtTLS  TO,   EsTATB  BT 

Tenant  for  Life  in  possession  will  be  regarded  aa  having  been  made 
for  the  joint  benefit  of  himself  and  the  reversioner  or  remainderman. 
The  law  will  not  permit  him  to  hold  it  for  bis  own  exclusive  benefit,  if 
the  reversioner  or  remainderman  will  contribute  his  share  of  the  sum 
paid. 
Iv  Life  Tenant  of  Renewable  Leasehold  Estate  Renews  Lease,  the 
law  will  not  permit  him  to  do  so  for  his  own  exclusive  use,  but  will 
make  him  a  trustee  for  the  reversioner  or  remainderman.  But  if  the 
life  tenant  pay  out  money  that  he  was  not  required  to  pay,  or  more 
than  his  proportionate  share,  he  becomes,  to  that  extent,  a  creditor  of 
the  estate,  and  will  be  subrogated  to  the  rights  of  the  persons  whose 
claims  he  has  paid  off.  He  and  those  claiming  under  him  occupy  a  posi- 
tion analogous  to  that  of  a  mortgagee  in  possession  after  condition 
broken,  and  cannot  be  ejected  until  all  sums  due  him  or  them  from  the 
estate  have  been  repaid 

Action  brought  by  the  plaintiff,  as  administrator  with  the 
will  annexed  of  Ann  Salter,  deceased,  to  recover  possession  of 
certain  real  estate  belonging  to  the  estate  of  his  testatrix. 
The  plaintiff  rested  his  right  to  recover  on  the  following  facts, 
which  were  admitted:  In  1877,  the  owner  of  the  land  leased 
it  to  Ann  Salter  for  the  term  of  five  years,  with  the  right  to 
successive  renewals  for  terms  of  ten  years  until  the  end  of  one 
hundred  years  from  the  date  of  the  lease.  Later  in  the  year 
1877  Ann  Salter  died,  leaving  her  husband,  William  Salter, 
and  her  children  surviving  her.  In  her  will  she  devised  the 
use  and  occupation  of  the  land  in  question  to  her  husband  for 
life,  in  lieu  of  all  estate,  right,  title,  or  interest  he  might  other- 
wise have  in  her  estate.     William  Salter  died  in  1886,  before 


Nov.  1886.]  Whitney  v.  Salter.  657 

the  commencement  of  this  action.  Ann  Salter's  estate  is  un- 
settled and  undistributed.  The  defendant  gave  in  evidence, 
over  the  plaintiflf's  objection,  the  following  facts:  Prior  to  Ann 
Salter's  death,  she,  her  husband  joining,  mortgaged  the  prem- 
ises. In  1880  the  mortgage  was  foreclosed,  and  the  premises 
sold  to  S.  A.  Reed,  who  conveyed  the  same,  in  1882,  to  Wil- 
liam Salter.  In  1879  a  mechanic's  lien  on  the  premises  was 
foreclosed,  and  the  premises  were  sold  under  the  judgment  to 
George  McMullen,  who,  in  1880,  assigned  the  certificate  of 
sale  to  William  Salter,  who,  in  the  same  year,  assigned  it  to 
John  Steele.  On  April  21,  1882,  the  lease  was  renewed  for 
ten  years  to  William  Salter,  as  the  assignee  and  successor  in 
interest  of  the  original  lessee.  On  February  4,  1885,  John 
Steele,  by  quitclaim  deed,  conveyed  the  premises  to  William 
Salter,  and  on  the  30th  of  October,  1885,  William  Salter,  by 
quitclaim  deed,  conveyed  them  to  Nancy  Salter,  the  defend- 
ant, who  is  in  possession  thereunder.  There  was  a  verdict  for 
the  defendant,  and  the  plaintiff  appealed  from  an  order  re- 
fusing a  new  trial. 

J.  R.  Corrigan,  for  the  appellant. 
Smith  and  Reedf  for  the  respondent. 

By  Court,  Mitchell,  J.  The  established  doctrine  is,  that  a 
tenant  for  life  in  possession,  in  the  purchase  of  an  encum- 
brance upon,  or  an  adverse  title  to,  the  estate,  will  be  regarded 
as  having  made  the  purchase  for  the  joint  benefit  of  himself 
and  the  reversioner  or  remainderman.  The  law  will  not 
permit  him  to  hold  it  for  his  own  exclusive  benefit,  if  the  re- 
versioner or  remainderman  will  contribute  his  share  of  the 
sum  paid.  If  the  life  tenant  in  such  case  pays  more  than  his 
proportionate  share,  he  simply  becomes  a  creditor  of  the  estate 
for  that  amount:  1  Washburn  on  Real  Property,  96;  Daviess 
V.  Myers,  13  B.  Mon.  511.  It  is  also  the  settled  doctrine,  that 
if  a  life  tenant  of  a  renewable  leasehold  estate  renews  tho 
lease,  the  law  will  not  permit  him  to  do  so  for  his  own  exclu- 
sive use,  but  will  make  him  a  trustee  for  the  reversioner  or 
remainderman.  And  this  is  so,  even  although  he  was  not 
required  to  renew:  Bissett  on  Estates  for  Life,  248.  The  re- 
newed lease  in  such  a  case  is  subject  to  the  same  equities  as 
the  original.  Thus  far  we  agree  with  the  appellant.  But  this 
is  not  the  whole  law  applicable  to  the  facts  of  this  case. 
Salter,  the  life  tenant,  was  under  no  obligation  to  pay  off  or 

Am.  St.  Rip.,  Vol.  L— 42 


658  Whitney  v.  Salter.  [Minn. 

buy  up  these  outstanding  claims  against  the  estate.  The  will 
under  which  he  held  the  life  estate  imposed  no  such  duty 
upon  him.  Neither  did  the  law:  1  Washburn  on  Real  Prop- 
scrty,  96. 

Whether  in  this  case  the  life  tenant  should  contribute  to- 
wards the  amount  paid  to  remove  these  encumbrances  is  not 
here  important.  Undoubtedly,  the  general  rule  in  regard  to 
the  apportionment  of  the  contribution  towards  paying  off  en- 
cumbrances between  the  life  tenant  and  the  remainderman 
is,  that  the  life  tenant  shall  contribute  in  proportion  to  the 
benefit  he  derives  from  the  liquidation  of  the  debt:  Story's 
Eq.  Jur.,  sec.  487;    1  Washburn  on  Real  Property,  96,  97. 

In  view  of  the  fact  that  this  life  estate  was  given  to  Salter 
"  in  lieu  of  all  estate,  right,  title,  or  interest "  he  might  other- 
wise have  in  the  estate  of  his  wife,  the  testatrix,  there  may  be 
some  question  whether  he  would  l)e  bound  to  contribute  any- 
thing towards  taking  up  these  outstanding  claims  against 
the  estate:  See  Brooks  v.  Harwood,  8  Pick.  497.  But  as  the 
point  is  not  really  before  us,  we  neither  decide  nor  consider  it. 
It  is,  however,  certain,  in  any  event,  that  Salter  became  a 
creditor  of  the  estate  for  the  amount  he  paid  out,  less  his  pro- 
portionate share,  if  any.  To  that  extent  he  would  be  subro- 
gated to  the  rights  of  the  parties  from  whom  he  bought,  and 
would  be  entitled  to  hold  the  property  until  the  other  parties 
interested  paid  their  share.  He  and  those  claiming  under 
him  would  occupy  a  position  analogous  to  a  mortgagee  in 
possession  after  condition  broken,  who  cannot  be  ejected  until 
all  sums  due  on  the  mortgage  have  been  paid. 

Order  affirmed. 


C!o-TBNAKT    PUECHASINO    ADVERSE    TiTLE    OR    ReMOVDJO    ENCUMBRANCE, 

Rights  of:  See  Fallon  v.  Chidester,  26  Am.  Rep.  164;  Borion  v.  Maffitt,  100 
Am.  Dec.  222,  note  227,  where  other  cases  in  that  series  are  collected. 

Subrogation,  What  is,  and  when  Arises:  See  Mosier's  Appeal,  93  Am. 
Dec  783,  note  788,  where  other  cases  in  that  series  are  collected. 


Nov.  1886.]    Wilson  v.  Minnesota  etc.  Ins.  Assoc.  659 

Wilson   v,  Minnesota    Farmers'  Mutual  Fieb 
Insurance  Association. 

[S6  Minnesota,  IIZ] 

Assignment  or  Error  that  Coxtrt  Errkd  in  Dkntino  Motion  for  New 
Trial  is  too  general  to  be  available. 

Insurance  Company  is  Deemed  to  have  Waived  Conditions  of  Policy 
making  a  misstatement  as  to  encumbrances  upon  the  property  to  avoid 
the  insurance,  where  it  bad  knowledge  at  the  time  of  the  application 
that  the  property  was  encumbered. 

Knowledge  op  Fact  Acqcired  bt  Agent  at  Tims  when  He  is  not  AcnNO 
AS  Such,  if  actually  had  in  mind  l)y  him  when  afterwards  acting  for 
his  principal,  will,  as  respects  that  transaction,  be  imputed  to  the  prin- 
cipal. 

Where  Court  Submits  Issue  of  Fact  to  Jury  on  Evidence  Assumed  to 
HAVE  been  Directed  to  That  Fact,  and  no  exception  is  then  taken, 
nor  suggestion  made  that  the  subject  referred  to  in  the  evidence  was 
not  shown  to  be  identical  with  the  subject  in  issue,  it  is  too  late,  on  ap* 
peal,  to  assign  that  as  error  on  the  part  of  the  court. 

Action  on  a  policy  of  insurance  issued  by  the  defendant. 
The  answer  alleged  that  the  applicant  for  insurance  falsely 
represented  that  the  property  was  unencumbered,  whereas  in 
fact  it  was  mortgaged.  The  amended  reply  alleged  that  at 
the  time  of  the  making  of  the  insurance  the  defendant  had 
knowledge  of  the  existence  of  the  mortgage.  The  plaintiflf 
had  a  verdict,  and  the  defendant  appealed  from  an  order 
refusing  a  new  trial. 

Nelson,  Reynolds,  and  Treat,  and  Bruckart  and  Reynolds,  for 
the  appellant. 

Clapp,  Woodard,  and  Covoie,  for  the  respondent. 

By  Court,  Dickinson,  J.  The  appellant's  first  assignment 
of  error  is,  that  the  court  erred  in  denying  defendant's  motion 
for  a  new  trial.  This  is  too  general,  and  is  of  no  avail.  It  is 
no  assignment  of  error,  within  the  meaning  of  the  rule  which 
contemplates  a  specification  of  the  errors  by  reason  of  which 
the  appellant  asks  a  reversal  of  the  order  or  judgment  ap- 
pealed from. 

The  second  assignment  of  error  cannot  be  sustained.  Under 
the  amendment  made  to  the  reply  during  the  trial,  it  was 
competent  for  the  plaintiff  to  show  that  the  agent  of  the  de- 
fendant knew,  at  the  time  the  application  was  made,  that  the 
property  was  encumbered.  The  defendant,  if  chargeable  with 
knowledge  of  the  fact,  would  bo  deemed  to  have  waived  the 
conditions  of  the  policy  making  a  misstatement  as  to  such  fact 
to  avoid  the  insurance:   Shafer  v.  Phoenix  Ins.  Co.,  63  Wis. 


660  Wilson  v.  Minnesota  etc.  Ins.  Assoc.         [Minn. 

361;  1  Wood  on  Fire  Insurance,  sec.  90.  If  the  agent, 
although  not  acting  as  such  when  the  information  was  com- 
municated to  him,  retained  a  recollection  of  the  fact,  and  had 
it  in  mind  when  effecting  this  insurance,  such  knowledge 
would  affect  the  principal:  Lebanon  Savings  Bank  v.  Hollen- 
beck,  29  Minn.  322;  Wade  on  Notice,  sec.  687,  and  cases 
cited.  The  evidence,  that  a  few  days  before  the  insurance  the 
assured  informed  the  agent  who  afterwards  eflfected  the  in- 
surance of  the  existing  encumbrance,  was  therefore  admissi- 
ble, even  though  that  alone  were  deemed  insuflBcient  to  charge 
the  defendant  with  notice. 

When  the  exception  referred  to  in  the  third  assignment  of 
error  was  taken,  the  court  qualified  the  instruction  excepted 
to,  and  to  the  instruction  as  thus  qualified  no  exception  was 
taken. 

It  was  admitted  by  the  pleadings  that  when  the  insurance 
was  eflfected  there  was  a  mortgage  upon  the  property  for  eight 
hundred  dollars,  and  interest,  given  to  the  Dundee  Mortgage 
Trust  Investment  Company.  The  only  evidence  of  notice  to  the 
agent  of  an  existing  encumbrance  referred  to  a  mortgage  of 
$850,  in  favor  of  MacMaster,  in  Fergus  Falls.  It  was  not  shown 
that  these  diflferent  designations  referred  to  and  were  the  same 
mortgage.  The  fourth  assignment  of  error  rests  upon  the  fact 
that  no  such  identity  was  shown.  The  point  is,  in  substance, 
that  the  court  erred  in  submitting  to  the  jury  the  question  as 
to  whether  the  defendant  had  notice  of  the  Dundee  mort- 
gage. As  to  this,  it  is  enough  to  say  that  the  court  submitted 
the  case  to  the  jury  as  though  the  mortgage  designated 
in  the  pleadings,  and  that  to  which  the  evidence  related, 
were  the  same.  No  suggestion  was  then  made  that  such  was 
not  the  fact,  no  exception  was  taken  to  the  instruction  in  this 
respect,  and  it  is  now  too  late  to  assign  this  as  error  on  the 
part  of  the  court. 

The  assignment  of  errors  contains  no  other  specifications 
than  those  to  which  we  have  referred,  and  the  order  refusing 
a  new  trial  is  aflBrmed. 

Waivbr  of  Stipulations  in  Poucy  op  Insukance:  See  Havens  v.  Home 
Ins.  Co.,  60  Am.  Rep.  689;  Pomeroy  v.  Body  Mountain  I.  <fe  S.  /.,  59  Id.  144; 
Northwestern  M.  L.  I.  Co.  v.  Amermanf  59  Id.  799;  Alexander  v.  Continental 
I.  Co.  of  New  York,  58  Id.  869;  American  Central  Ira.  Co.  v.  McCrea,  41  Id. 
647;  Carrigan  v.  Lycoming  F.  I.  Co.,  38  Id.  687;  Dayton  Ina.  Co.  v.  Kelly, 
15  Id.  612;  Haytoard  v.  National  Ina.  Co.,  14  Id-  400;  Security  Ins.  Co.  v. 
Fay,  7  Id.  670;  Helme  v.  Philadelphia  L.  I.  Co.,  100  Am.  Dec  621,  note  625. 
where  other  cases  in  that  series  are  collected. 


Dec.  1886.]  Gdnn  v.  Peakes.  661 

GuNN  V.  Peakes. 

[36  Minnesota,  177.  ] 

Complaint  on  Fobkion  Judgment  need  not  Alleqb  that  Court  that 
Bendered  It  had  Jurisdiction  either  of  the  cause  or  the  parties.  A 
judgment  of  a  foreign  court,  complete  and  regular  on  its  face,  is  prima 
fade  valid. 

FoREiQN  Judgment  mat  be  Proved  by  Copy  thereof,  duly  authenticated 
by  the  duly  authenticated  certificate  of  an  officer  properly  authorized  by 
law  to  give  a  copy.  • 

C1.ERK  or  Prothonotart  of  Court  is  Presumed  to  have  Authority  to 
Make  and  Certify  Copies  of  the  records  of  the  court  in  his  keeping, 
and  such  copies  are  duly  authenticated  by  his  certificate  over  his  official 
signature  and  the  seal  of  the  court.  His  official  signature  and  the  seal 
are  duly  authenticated  by  the  great  seal  of  the  state  or  government  in 
which  the  court  is  found,  affixed  to  the  certificate  of  the  keeper  thereoL 

Orsat  Seal  of  State  or  Government  Proves  Itself.  Judgment  that 
"Action  be  Dismissed  without  Prejudice  to  another  action"  is,  by 
its  terms,  no  bar  to  a  subsequent  action  for  the  same  cause.  And  it 
makes  no  difference  whether  the  saving  clause  was  properly  or  improp- 
erly attached  to  the  judgment. 

Action  on  a  foreign  judgment.  The  only  evidence  offered 
by  the  defendant  was  the  record  of  a  former  action  on  the 
same  judgment,  which  resulted  in  the  judgment  of  dismissal 
referred  to  in  tho  opinion.  Other  facts  are  stated  in  the 
opinion. 

Charles  J.  Bartleson,  for  the  appellant. 

Kitchely  Cohen,  and  ShaWy  for  the  respondent. 

By  Court,  Berry,  J.  This  is  an  action  upon  a  foreign — a 
Nova  Scotia — ^judgment.  A  judgment  of  a  foreign  court,  com- 
|»lete  and  regular  upon  its  face,  is  prima  facie  valid:  Walker  v. 
Witter,  1  Doug.  1;  Reynolds  v.  Fenton,  3  Com.  B.  187;  Barber  v. 
Lamb,  8  Com.  B.,  N.  S.,  95;  Robertson  v.  Struth,  5  Q.  B.  941; 
Shumway  v.  Stillman,  4  Cow.  292;  15  Am.  Dec.  374;  6  Wend. 
447;  Lazier  v.  Westcott,  26  N.  Y.  146;  82  Am.  Dec.  404;  Bissell 
V.  Wheelock,  11  Cush.  277;  Holt  v.  Alloway,  2  Blackf  108; 
Creppa  v.  Burden,  1  Smith's  Lead.  Cas.,  8th  Am.  ed.,  1079, 1143; 
Duchess  of  Kingston's  Case,  2  Id.  734,  981;  Dozier  v.  Joyce,  8 
Port.  303;  Whart.  Ev.,  sees.  804,  1302,  1303.  It  follows  that 
a  complaint  upon  such  foreign  judgment  need  not  allege  that 
the  court  by  which  it  was  rendered  had  jurisdiction  either  of 
the  cause  or  the  parties:  Robertson  v.  Struth,  supra;  Whart. 
Ev.,  sees.  804,  1302,  1303;  2  Chit.  PI.  244,  and  note  y.  As  to 
this  matter  of  pleading,  Kams  v.  Kunkle,  2  Minn.  268  (313), 
is  wrong,  both  in  reason  and  upon  authority. 


662  GuNN  V.  Peakes.  [Minn. 

A  foreign  judgment  may  be  proved  by  a  copy  thereof,  duly 
authenticated  by  the  duly  authenticated  certificate  of  an  offi- 
cer properly  authorized  by  law  to  give  a  copy:  1  Greenl.  Ev., 
sec.  488;  Mahurin  v.  BicJcford,  6  N.  H.  567;  Church  v.  Huh- 
bartj  2  Cranch,  187,  237;  Dozier  v.  Joyce,  supra. 

The  clerk  or  prothonotary  of  a  court  is  presumed  to  possess 
authority  to  make  and  certify  copies  of  the  records  of  the 
court  in  his  keeping,  and  eu^h  copies  are  duly  authenticated 
by  his  certificate  over  his  official  signature,  and  by  the  seal  of 
the  court.  His  official  signature  and  the  seal  are  duly  au- 
thenticated by  the  great  seal  of  the  state  or  government  in 
which  the  court  is  found,  affixed  to  the  certificate  of  the  keeper 
thereof.    The  great  seal  proves  itself:  Lazier  v.  Westcoitf  supra. 

The  copy  of  the  record  received  in  evidence  upon  the  trial 
of  the  case  at  bar  was  sufficiently  authenticated,  within  the 
rule  stated,  and  it  proves  the  judgment  to  which  this  action 
relates.  The  official  signature  of  the  prothonotary  and  the 
seal  of  the  court  are  authenticated  as  such,  and  as  what  they 
purport  to  be,  by  the  great  seal  of  the  province  of  Nova 
Scotia  affixed  to  the  certificate  of  the  keeper  of  the  great 
seal,  viz.,  the  lieutenant-governor  of  the  province.  Upon 
the  face  of  the  records,  the  prothonotary  and  seal  purport  to 
be  the  prothonotary  and  seal  of  a  duly  constituted  court  of 
record  of  the  province  of  Nova  Scotia.  The  record  is  upon 
its  face  complete  and  regular,  showing  the  commencement 
and  pendency  of  an  action  for  the  recovery  of  money  upon  a 
promissory  note  and  other  causes  of  action  alleged,  service 
of  summons  therein  upon  the  defendant,  and  his  appearance, 
together  with  other  proceedings  culminating  in  a  money  judg- 
ment against  defendant,  duly  entered.  This  was  ample  proof 
of  a  valid  judgment. 

We  attach  no  importance  to  the  circumstance  that  what  ap- 
pears as  the  judgment  in  the  copy  of  the  record  is  followed  by 
the  name  or  signature  of  the  plaintifi''s  attorney.  Whatever 
may  be  the  purpose  of  the  name  or  signature,  ostensibly  the 
judgment  is  duly  entered  as  such  in  the  record.  Very  likely 
the  signature  of  the  attorney  is  affixed  under  some  such  com- 
mon-law usage  as  is  referred  to  in  Tidd's  Practice,  568,  569, 
903,  904,  930,  and  in  4  Chitty's  Practice,  107.  But  whatever 
its  purpose,  it  does  not  afiect  the  actual  entry  of  the  judgment 
in  the  record. 

The  judgment  in  a  former  action,  which  is  set  up  in  bar  of 
the  present,  was,  that  "the  action  be  dismissed  without  preju- 


Dec.  1886.]  Davis  v.  Kobe.  663 

dice  to  another  action."  Such  a  judgment  is  by  its  terms  no 
bar.  Whether,  with  reference  to  the  stage  of  the  proceedings 
at  which  the  action  was  dismissed,  it  was  proper  to  attach 
any  such  saving  clause  to  the  dismissal,  is  not  important. 
The  former  judgment  must  be  pleaded  and  taken  for  what  it 
is,  and  not  for  what  it  ought  to  have  been. 
Judgment  aflBrmed. 

Action  on  Foreign  Juikiment,  Defenses  Available  in:  See  Eanlep  r. 
Donoghue,  43  Am.  Rep.  654;  BovoUr  t.  Huston,  32  Id.  673;  Oilman  y.  Oilmant 
30  Id.  646;  Eaton  v.  Hasty,  29  Id.  365;  SevxUl  v.  SewaO,  23  Id.  299;  Projaer 
V.  Warner,  19  Id.  132;  Marx  v.  Fort,  11  Id.  432,  note  435;  McLaren  v. 
KeUer,  8  Id.  591;  Hoffman  v.  Hoffman,  7  Id.  299,  note  302;  Kinnier  v.  Kin- 
nier,  6  Id.  132;  Latimer  v.  Union  Pacific  R'y  E.  D.,  97  Am.  Dec.  378;  Folger 
r.  Columbian  Ins.  Co.  and  Trustees,  96  Id.  747;  Clemmer  v.  Cooper,  95  Id.  720» 
note  722,  where  other  cases  in  that  series  are  collected;  Walton  y.  Sugg,  93 
Id.  680,  note  683;  JRankin  v.  Goddard,  89  Id.  718,  note  720. 

Complaint  on  Foreign  Judgment  need  not  Aver  Jurisdiction  nr 
Court  Rendering  It:  See  Butcher  v.  Bank  of  Brownsville,  83  Am.  Dec. 
44C,  note  450,  where  other  cases  in  that  series  are  collected. 

Authentication  of  Foreign  Judgment:  See  Taylor  v.  Barron,  64  Am. 
Dec.  281,  note  290,  where  other  cases  in  that  series  are  collected;  Lazier  ▼. 
Westcott,  82  Id.  404,  note  411,  where  this  subject  is  considered  at  length} 
Uutddna  v.  Oerrish,  13  Am.  Rep.  19. 


Davis  v.  Kobe. 

[86  MINKK80TA,  214.] 

Factor  to  Whom  Wheat  is  Consigned  for  Storaob  in  Elevator,  and 
for  sale,  may  store  it  in  a  mass  in  a  bin  with  other  wheat  of  the  same 
grade  and  quality,  in  the  absence  of  instructions  from  the  consignor  to 
the  contrary. 

Courts  Take  Judicial  Notice  that  It  is  Customary  to  Store  Wheat 
in  Mass  with  other  wheat  of  the  same  grade  and  quality  in  general  com* 
mercial  elevators. 

Factor  is  not  Rssponsiblx  to  his  Principal  for  Differences  in 
Grades  of  grain,  in  the  market  to  which  it  is  consigned,  from  those 
established  at  other  places,  in  the  absence  of  special  instructions.  The 
principal  assumes  the  risk  of  that  when  he  selects  his  market. 

Factor  Who  has  Made  Large  Advances  to  his  Principal  upon  prop- 
erty consigned  to  him  for  sale,  which  property  has  become  doubtful 
security  for  his  reimbursement,  and  who  has  repeatedly  demanded  re- 
payment of  his  advances,  or  security  therefor,  without  compliance  by 
the  principal,  may,  after  reasonable  notice  to  his  principal,  with  reason- 
able discretion  and  in  good  faith,  sell  the  property,  although  directed  by 
the  principal  to  hold  it  longer. 

Action  to  recover  a  balance  of  account  for  disbursements, 
charges,  commissions,  and  advances  on  wheat  consigned  by 


664  Davis  v.  Kobe.  [Minn. 

the  defendant  to  the  plaintiflf  at  Duluth,  and  which  had  heen 
sold  by  the  latter,  some  of  it  against  the  defendant's  instruc- 
tions. The  plaintiflf  had  a  verdict,  and  the  defendant  appealed 
from  an  order  refusing  a  new  trial.  Other  facts  are  stated  in 
the  opinion. 

Bruckart  and  Reynolds,  for  the  appellant. 

W,  W.  Billaon,  for  the  respondent. 

By  Court,  Dickinson,  J.  A  factor  or  commission  merchant, 
to  whom  wheat  is  consigned  for  storage  in  an  elevator,  not  a 
private  warehouse,  and  for  sale,  may  store  it  in  a  mass  in  a 
bin  with  other  wheat  of  the  same  grade  and  quality,  in  the 
absence  of  instructions  from  the  consignor  to  the  contrary.  It 
has  become  a  matter  of  common  knowledge  that  such  is  the 
customary  manner  of  storing  wheat  in  our  general  commercial 
elevators,  and  of  this  the  courts  should  not  affect  ignorance^ 
but  should  take  judicial  notice  without  proof.  The  fact  that 
the  wheat  is  of  the  grade  known  as  "  condemned  "  creates  no 
exception  to  the  rule.  There  was  therefore  no  error  in  that 
part  of  the  charge  of  the  court  referred  to  in  the  appellant's 
first  assignment. 

The  court  did  not  err  in  instructing  the  jury  that  if  the  con- 
signor shipped  this  grain  to  his  factor  at  Duluth  to  be  sold 
there,  and  the  grade  at  Duluth  was  not  as  good  as  at  the  place 
of  shipment,  the  consignor  must  bear  the  loss,  in  the  absence 
of  special  instructions  to  his  factor.  This  was  only  saying, 
in  other  words,  that  the  factor,  in  executing  his  agency  by 
Belling  in  the  Duluth  market,  would  not  be  responsible  to  his 
principal  in  respect  to  the  grades  established  at  that  place. 
The  principal  assumed  the  risk  of  that  when  he  selected  his 
market. 

The  court  properly  instructed  the  jury  that  the  factor  was 
justified  in  selling  the  wheat,  notwithstanding  the  request  of 
the  principal  to  hold  it  longer.  Ordinarily  the  agent  would 
be  bound  to  obey  the  instructions  of  his  principal  as  to  the 
time  of  selling.  But  it  was  shown  that  the  factor  had  made 
large  advances  to  his  principal  upon  this  wheat;  that  the 
grain  was  of  doubtful  suflSciency  as  security  for  what  was  due 
to  the  factor  on  account  thereof;  that  the  factor  had  repeatedly 
demanded  repayment  of  his  advances,  or  security  for  the 
same,  as  a  condition  of  his  continuing  to  hold  the  wheat,  noti- 
fying his  principal  that  he  should  sell  if  his  demand  was  not 


Dec.  1886.]  Peck  v.  McLean.  665 

complied  with;  and  that,  although  reasonable  notice  had  been 
given,  the  principal  had  neglected  to  reimburse  or  secure  the 
agent.  Under  such  circumstances,  the  factor  had  a  right, 
acting  in  good  faith,  and  with  reasonable  discretion,  with 
regard  both  to  the  reimbursement  of  himself  and  the  interest 
of  his  principal,  to  sell  the  property:  Brown  v.  McGran,  14 
Pet.  479;  Feild  v.  Farrington,  10  Wall.  141;  Parker  v.  Brancker, 
22  Pick.  40. 

From  what  has  already  been  said,  it  follows  that  the  charge 
was  correct,  that  if  there  were  no  special  instructions  as  to  a 
separate  storage  of  the  grain,  and  if  it  sold  for  a  fair  price, 
the  verdict  should  be  for  the  plaintiflf.  In  other  words,  the 
factor  being  justified  in  selling  and  having  sold  for  a  fair 
price,  the  principal  is  not,  because  of  such  sale,  entitled  to 
recover  against  the  factor. 

Order  affirmed. 

Right  of  Factor  Who  has  Madb  Advances  to  Sell:  See  PhilUpa  v. 
6'eoU,  97  Am.  Dec.  369,  note  374;  Baugh  v.  Kirhpatrick,  93  Id.  675;  Benny  v. 
Rhodes,  59  Id.  293;  Blot  v.  Boieeau,  51  Id.  345,  note  351,  where  other  cases  in 
that  series  are  collected. 

JiTDiciAL  Notice  of  General  Usages  of  Business:  See  note  to  Lar\fear 
▼.  Mestier,  89  Am.  Dec.  664,  where  this  subject  is  considered. 

Grain  in  Mass  in  Warehouse:  See  Dole  v.  Olmstead,  85  Am.  Dec  397, 
note  401,  where  other  cases  in  that  series  are  collected. 


Peck  v.  McLean. 

IS6  Minnesota,  228.] 

One  Tekant  in  Common  of  Personal  Propertt  hat  Separately  Main- 
tain Action  for  a  wrong  done  to  it,  if  his  co-tenants  refuse  to  join  with 
him  as  plaintitfs,  and  they  are  non-residents  of  and  are  without  the  state. 

Ekkoneous  Judgment  is  Valid  until  Reversed,  and  Protects  Plaintiff 
in  enforcing  it. 

Defendant,  after  Reversal  of  Erroneous  Judgment  against  Him,  la 
Entitled  to  Restitution  of  only  so  much  as  the  plaintiff  has  received 
upon  the  execution  levied  thereunder. 

Appeal  from  an  order  sustaining  a  demurrer.    The  opinion 
Btates  the  case. 

/.  D.  Springer,  for  the  appellant. 

Flandrau,  Squires,  and  Cutcheon,  for  the  respondents. 

By  Court,  Gilfillan,  C.  J.    This  cause  comes  here  upon  an 
order  sustaining  a  demurrer  to  the  complaint.     The  questions 


666  Peck  v.  McLean.  [Minn. 

raised  by  the  demurrer  are,  that  there  is  a  defect  of  parties, 
and  that  the  complaint  does  not  state  facts  suflBcient  to  con- 
stitute a  cause  of  action.  The  case  stated  by  the  complaint  is 
this:  Plaintiff  was  the  owner  of  seven  eighths,  and  Mary  F. 
Aiken  of  one  eighth,  of  the  steamboat  Nellie  Peck.  Plaintiff 
was  the  owner  of  three  fifths,  and  John  H.  Charles,  as  trustee, 
of  two  fifths,  of  the  steamboat  General  Meade.  Plaintiff  was 
the  owner  of  three  fourths,  and  H.  C.  Aiken  of  one  fourth,  of 
the  steamboat  General  Terry.  In  January,  1883,  the  defend- 
ants commenced,  in  the  district  court  of  the  United  States  for 
the  district  of  Nebraska,  an  action  in  rem  against  each  of  said 
steamboats,  to  recover  for  supplies  furnished,  and  the  vessels 
were  taken  on  mesne  process.  The  said  owners  filed  answers. 
in  July,  1883,  a  decree  was  entered  by  said  court  in  each  of 
said  actions,  directing  the  vessel  to  be  sold  to  satisfy  the 
amount  found  to  be  a  lien  upon  it.  The  owners,  in  July,  1883, 
took  an  appeal  in  each  of  said  actions  to  the  circuit  court  of 
the  United  States.  In  October,  1883,  at  the  instance  of  these 
defendants,  process  was  issued  upon  such  decree  in  each  of 
said  actions,  and  upon  such  process  each  of  the  vessels  was 
sold.  The  amount  for  which  it  was  sold  is  stated,  but  it  is  not 
alleged  that  any  part  of  such  amount  was  paid  to  these  de- 
fendants. In  August,  1884,  the  circuit  court  entered  a  decree 
in  each  action,  reversing  the  decree  of  the  district  court. 

The  plaintiff  resides  in  Iowa,  the  defendants  in  Dakota, 
Mary  F.  and  H.  C.  Aiken  in  Nebraska,  John  H.  Charles  in 
Pennsylvania.  Plaintiff's  co-owners  are  none  of  them  within 
the  state,  or  within  the  jurisdiction  of  its  courts,  and  they 
all  refuse  to  join  with  her  in  any  action  or  actions  in  the 
premises. 

The  questions  presented  in  the  case  are,  Can  plaintiff  main- 
tain the  action  under  the  circumstances  without  making  her 
co-owners  parties?  And  if  so,  can  she  recover,  the  defendants 
not  having  received  any  part  of  the  money  for  which  the  ves- 
sels sold  ? 

The  fact  that  the  co-owners  are  not  within  the  jurisdiction, 
and  cannot  be  brought  in  as  defendants,  is  a  suflBcient  reason 
for  not  making  them  defendants,  if,  in  a  case  like  this,  that 
might  otherwise  be  done  under  our  practice.  Such  being  the 
case,  is  it  absolutely  essential  that  they  be  made  plaintiffs  ? 
The  statute  (Gen.  Stats.  1878,  c.  66,  sec.  26)  provides  that 
"  every  action  shall  be  prosecuted  in  the  name  of  the  real 
party  in  interest."    But  where  there  are  several  who  are  en- 


Dec.  1886.]  Peck  v.  McLean.  667 

titled  to  the  benefit  of  the  relief  sought,  i.  e.,  several  real  par- 
ties in  interest,  whether  they  must  all  be  joined,  or  whether, 
under  peculiar  circumstances,  one  of  them  may  sue  alone, 
must  be  determined  by  the  law  as  it  was  before  the  statute, 
for  the  latter  does  not  provide  for  such  a  case.  The  general 
rule  is  stated  by  Chitty.  "  When  two  or  more  persons  are 
jointly  entitled,  or  have  a  joint  legal  interest  in  the  property 
affected,  they  must,  in  general,  join  in  the  action,  or  the  defend- 
ant may  plead  in  abatement":  1  Chit.  PI.  *64.  As  to  tenants 
in  common,  a  distinction  has  always  existed  between  actions 
for  the  realty  and  personal  actions.  "  When  the  action  is  in 
the  realty,  they  must  sue  separately;  when  in  the  personalty, 
they  must  join":  Hilly.  Gibbs,  5  Hill,  56;  Co.  Lit.  198  a.  The 
rule  applies  to  part  owners  of  ships.  "  Whether  the  action  be 
in  contract  or  in  tort,  for  services  rendered  by  or  for  injuries 
done  to  their  ship,  all  should  join  in  its  prosecution":  Free- 
man on  Cotenancy,  sec.  387. 

It  will  be  seen  that  Chitty  states  the  rule  as  "  in  general," 
implying  that  there  may  be  exceptions  to  it;  and  unless  there 
may  be  exceptions,  it  is  apparent  that  what  is  only  a  rule  of 
practice,  affecting  only  the  mode  of  proceeding  to  redress  a 
wrong,  will  sometimes  operate  to  altogether  prevent  a  remedy. 
The  reason  for  the  rule  —  to  protect  defendants  against  multi- 
plicity of  suits  —  is  good.  But  if,  adhered  to,  it  will  in  a 
particular  case  cause  a  failure  of  justice,  the  reason  for  de- 
parting from  it  is  stronger  than  that  for  the  rule.  It  is  better 
that  a  defendant  should  be  put  to  the  danger  and  incon- 
venience of  several  suits  than  that  a  plaintiff  should  be  de- 
prived of  a  remedy.  So  where  a  third  person  colluded  with  a 
partner  in  a  firm  to  injure  the  other  partners,  they  might, 
without  joining  their  partner,  maintain  an  action  against  the 
third  person:  Longman  v.  Pole,  1  Moody  &  M.  223. 

An  instance  of  an  exception  allowed  of  necessity  to  the 
general  rule  as  to  parties  was  in  the  case  of  femes  covert.  Thus 
the  wife  was  permitted  to  sue  alone  where  the  husband  was 
in  exile:  Co.  Lit.  132  b;  or  had  abjured  the  realm:  Wilmot^a 
Case,  Moore,  851;  Dubois  v.  Hole,  2  Vem.  613;  or  where  he 
was  an  alien  enemy:  Derry  v.  Duchess  of  Mazarine,  1  Ld. 
Raym.  147;  or  where  he,  a  foreigner,  never  in  the  United 
States,  had  deserted  her  in  a  foreign  country:  Gregory  v.  Paul, 
15  Mass.  31. 

We  are  not  cited  to,  and  do  not  find,  any  case  like  this;  but 
the  reason  for  holding  it  an  exception  to  the  general  rule  is  as 


668  Peck  v.  McLean.  [Minn. 

strong  as  could  ever  exist  in  any  case,  as  plaintifif's  co-owners 
are  out  of  the  jurisdiction,  and  therefore  cannot  be  brought 
in  as  defendants;  and  as  they  refuse  to  join  as  plaintiflFs,  she 
■will  be  entirely  without  remedy,  if  we  rigidly  apply  the  gen- 
eral rule.  The  case  comes  within  the  reason  for  making  an 
exception,  and  we  regard  it  as  such.  The  ground  of  demur- 
rer that  there  is  a  defect  of  parties  is  not  well  founded. 

There  is  some  variance  in  the  authorities  on  the  question 
whether  a  defendant  in  an  erroneous  judgment  may,  after  its 
reversal,  recover  the  full  value  of  his  property  sold  on  an 
execution  upon  the  erroneous  judgment  before  its  reversal,  or 
only  BO  much  as  the  plaintiff  has  realized  upon  the  execution. 
It  seems  to  us  that  the  decisions  holding  the  latter  are  more 
in  accordance  with  principle,  for  the  erroneous  judgment  is 
valid  until  reversed.  It  is  the  act  of  the  court,  and  the  party 
may,  until  reversal,  justify  under  a  regular  execution  upon  it: 
Bank  of  U.  S.  v.  Bank  of  Washington,  6  Pet.  8.  This  is  the 
generally  recognized  rule.  After  a  reversal,  the  plaintiff  is 
bound  to  make  restitution, — that  is,  to  return  to  the  defendant 
whatever  he  got  by  means  of  the  judgment;  but  he  cannot 
be  treated  as  a  wrong-doer  for  causing  execution  to  issue,  and 
the  defendant's  property  to  be  levied  on  and  sold.  It  protects 
him  while  it  remains  in  force.  It  may  seem  a  hardship  to 
the  defendant  in  such  a  judgment  that  under  it  his  property 
may  be  sold  for  greatly  less  than  its  value,  and  his  right  of 
restitution  be  limited  to  what  came  into  the  hands  of  the 
plaintiff.  But  such  hardship,  when  it  occurs,  will  generally, 
if  not  always,  be  the  result  of  his  own  acts.  If,  by  failing  to 
appeal,  or  to  obtain  a  supersedeas  on  an  appeal,  he  permits  the 
judgment  to  remain  in  force  and  enforceable,  he  can  hardly 
complain  that  the  other  party  proceeds  to  enforce  it.  To  en- 
title the  defendant  to  restitution,  it  must  appear  that  the 
money  has  been  paid  to  the  plaintiff:  Eubank  v.  Balls,  4  Leigh, 
308.  Among  the  cases  holding  as  we  do,  we  may  refer  to  the 
following:  Gay  v.  Smith,  38  N.  H.  171;  Bickerstaff  y.  Dellinger, 
1  Murph.  272;  McJilton  v.  Love,  13  111.  486;  54  Am.  Dec.  449; 
Eyre  v.  Woodfine,  Cro.  Eliz.  278;  Westerne  v.  Creswick,  4  Mod. 
161;  Lovett  v.  German  Bef.  Church,  12  Barb.  67;  McGuire  v. 
Ely,  Wright,  520. 

For  the  reason,  then,  that  the  complaint  does  not  show 
that  any  money  came  into  the  hands  of  these  defendants,  it 
does  not  state  any  cause  of  action. 

Order  afl&rmed. 


Jan.  1887.]  Smith  v.  Wilson.  '  669 

Action  by  Onb  Co-tenant  against  Third  Pebson:  See  ffines  v.  Eobin- 
eon,  99  Am.  Dec.  772;  Mohley  v.  Bruner,  98  Id.  360.  note  363,  -where  other 
cases  in  that  series  are  collected. 

After  Reversal  of  Judgment,  Party  against  Whom  It  was  Ren- 
dered IS  Entitled  to  Full  Restitution  :  See  Smith  v.  Zent,  43  Am.  Rep. 
61;  Carson  v.  Suggett,  86  Am.  Dec.  112,  note  114,  where  other  cases  in  that 
series  are  collected.  But  money  paid  in  satisfaction  of  a  judgment,  upon  a 
compromise  and  settlement  thereof,  cannot  be  recovered  back  upon  a  re- 
versal of  the  judgment:  Kaxifman  v.  Dickeneheeta,  95  Am.  Dec.  694. 


Smith  v.  Wilson. 

rS6  Minnesota,  884.1 

Fact  that  Testimony  op  Witness  Differs  in  Some  Important  Particu- 
lars from  that  given  by  him  on  a  former  trial  of  the  case  is  not  sufficient 
to  justify  the  appellate  court  in  setting  aside  a  verdict  resting  upon  such 
testimony,  which  the  trial  court  has  refused  to  disturb. 

It  13  NOT  Negligence  in  Law  fob  Guest  at  Hotel  to  Retain  $495  in 
Belt  on  his  person  while  sleeping  in  a  room  by  himself,  although  the 
bolt  of  the  door  to  his  room  could  be  opened  by  a  wire  from  the  outside. 

Innkeeper's  Liability  in  Respect  to  his  Guest's  Money  is  not  Limited 
TO  Such  Sum  aa  is  necessary  for  the  guest's  traveling  expenses. 

Alleged  Impropriety  of  Remarks  of  Attorney  in  Argument  to  Jury 
will  not  be  considered  as  a  ground  of  error,  when  presented  by  affidavit 
merely,  and  not  as  part  of  a  settled  case  or  bill  of  exceptions. 

Action  to  recover  $495  alleged  to  have  been  stolen  from  the 
plaintiff  while  a  guest  in  the  defendant's  hotel,  and  while  ho 
was  asleep  in  his  room,  the  door  of  which  he  had  bolted,  the 
bolt,  however,  proving  insecure.  The  answer  put  in  issue  the 
averments  of  the  complaint,  and  alleged  that  defendant  had 
complied  with  the  statutory  condition  of  exemption  from  lia- 
bility by  providing  a  suflBcient  safe,  and  keeping  posted  tho 
statutory  notice,  and  providing  locks  and  bolts  for  all  room 
doors,  etc.  The  plaintiff  had  a  verdict  for  tho  full  amount 
claimed.  The  defendant  moved  for  a  new  trial,  on  the  ground 
that  the  evidence  did  not  justify  the  verdict,  and  for  miscon- 
duct of  the  prevailing  party,  supporting  tho  latter  ground  by 
the  defendant's  affidavit  as  to  improper  and  prejudicial  com- 
ments of  the  plaintiff's  attorney  in  his  closing  address  to  the 
jury  concerning  the  character  of  the  defendant's  hotel.  These 
remarks  were  not  in  the  settled  case.  The  motion  was  denied, 
and  the  defendant  appealed. 

O'Brien  and  O'Brien,  for  the  appellant. 

C.  D.  O^Brien,  for  the  respondent. 


670  Smith  v.  Wilson.  [Minn. 

By  Court,  Dickinson,  J.  The  point  that  the  verdict  was  not 
justified  by  the  evidence  presents  the  question  whether  it  is 
apparent,  upon  the  review  of  the  case,  that  the  testimony  of 
the  plaintiff  as  to  the  possession  of  the  money  alleged  to  have 
been  taken  from  his  person,  and  as  to  the  fact  of  the  robbery, 
was  unworthy  of  belief  by  the  jury.  If  it  was  credible,  it 
clearly  justified  the  verdict.  Its  most  apparent  infirmity  was, 
that  in  some  important  particulars  it  was  difierent  from  the 
testimony  of  the  same  witness  upon  a  former  trial,  as  to  the 
source  from  which  he  received  the  money.  The  discrediting 
facts,  which  the  testimony  of  the  plaintiff  tended  to  explain 
away,  were  properly  placed  before  the  jury  for  their  considera- 
tion. They  are  not  sufficient  to  justify  us,  upon  a  review  of 
the  record,  in  setting  aside  the  verdict  which  the  trial  court 
has  refused  to  disturb. 

There  is  nothing  in  the  alleged  negligence  of  the  plaintiff 
which  was  not  clearly  subject  to  the  determination  of  the  jury 
upon  the  evidence.  The  fact  that,  sleeping  in  a  room  at  the 
hotel  occupied  only  by  himself,  the  plaintiff  retained  the  sum 
of  $495  in  money  secured  in  a  belt  around  his  body,  was  not 
such  conduct  as  should  be  deemed  negligence  as  a  matter  of 
law,  although  the  bolt  of  the  door  to  his  room  could  be  opened 
with  a  wire  from  the  outside. 

The  evidence  went  to  show,  and  after  verdict  it  must  be 
taken  to  have  been  the  fact,  that  the  defendant  had  not  com- 
plied with  the  statutory  conditions  so  as  to  have  protected 
himself  from  the  common-law  liability  of  innkeepers.  The  re- 
sponsibility of  the  innkeeper  in  respect  to  the  money  of  his 
guest  was  not  limited  to  such  an  amount  as  was  necessary  for 
the  guest's  traveling  expenses:  Armistead  v.  Wilde,  17  Q.  B. 
261;  Berkshire  Woolen  Co.  v.  Proctor,  7  Cush.  417;  Wilkins  v. 
Earle,  44  N.  Y.  172;  3  Am.  Rep.  655;  Quinton  v.  Courtney,  1 
Hayw.  (N.  C.)  40;  Redfield  on  Carriers,  598-605;  Pinkerton 
V.  Woodward,  33  Cal.  557,  600;  91  Am.  Dec.  657. 

The  alleged  impropriety  in  the  remarks  of  the  respondent's 
attorney  in  his  argument  to  the  jury  has  not  been  shown  by  the 
settled  case,  and  will  not  be  considered  upon  affidavit  merely. 

Order  affirmed.  

Innkeeper's  Liability  for  Guest's  Goods  or  Monet:  See  Rvbenstdn  v. 
Cruikshanks,  52  Am.  Rep.  806;  Murchison  v.  Sargent,  47  Id.  754;  Dunbier  v. 
Day,  41  Id.  772;  Adams  v.  Ckm,  5  Id.  524;  WilUna  v.  Earle,  4  Id.  655; 
Ramaley  v.  Leland,  3  Id.  728;  Houser  v.  Tully,  1  Id.  390;  Read  v.  Amidon, 
98  Am.  Dec.  560,  note  562,  where  other  cases  in  that  series  are  collected; 
Vance  v.  Throckmorton,  96  Id.  327,  note  330. 


Jan.  1887.]  Pye  v.  City  of  Mankato.  671 

Pye  V.  City  of  Mankato. 

[36  Minnesota,  873.] 
Cmr  IS  Liable  fob  Collecting  and  Gatherinq  up  ScBPAca  Watee  by 
artificial  means,  sach  as  sewera  and  drains,  and  casting  it  npon  the 
preinises  of  another  in  increased  and  injuriooa  quantities. 

Action  to  recover  damages  for  an  injury  to  the  plaintiflf's 
lot.  The  plaintiff  had  judgment,  and  the  defendant,  having 
moved  for  a  new  trial  which  was  denied,  appealed.  The  other 
facts  are  stated  in  the  opinion. 

James  Brown,  for  the  appellant. 

Daniel  Buck,  and  Collester  and  Foster ^  for  the  respondent. 

By  Court,  Mitchell,  J.  The  ground  on  which  a  new  trial 
was  asked,  and  the  only  point  urged  in  this  court,  was,  that 
"  the  decision  of  the  court  is  not  justified  by  the  evidence,  and 
is  contrary  to  law."  As  counsel  for  appellant  nowhere  indi- 
cates wherein  the  decision  is  not  justified  by  the  evidence,  we 
shall  assume  that^the  findings  of  fact  are  supported  by  the 
evidence,  thus  leaving  as  the  only  question  for  consideration 
whether  these  findings  justify  the  conclusion  of  law  that 
plaintiff  is  entitled  to  recover.  We  shall  assume,  in  favor  of 
appellant,  that  this  was  "  surface  water,"  and  not  a  "  water- 
course." Indeed,  upon  the  facts  found  by  the  court,  there  is 
no  doubt  whatever  upon  this  point. 

The  material  facts  found  are,  that  originally  this  water,  fol- 
lowing a  depression  in  the  ground,  flowed  southerly,  across 
Washington  Street  (easterly  of  plaintiff's  premises),  and 
from  thence  finally  found  its  way  into  the  Minnesota  River; 
that  the  city  graded  up  Washington  Street  some  two  feet 
above  the  natural  surface  of  the  ground,  thus  intercepting 
the  flow  of  the  water,  as  formerly,  across  that  street.  The  city 
also  constructed  a  gutter  on  the  north  side  of  Washington 
Street,  into  which  to  gather  up  and  carry  this  water  westerly, 
and  past  plaintiff's  premises  (which  abutted  on  the  north  side 
of  Washington  Street),  into  the  river;  that  this  gutter  was 
negligently  and  wrongfully  constructed,  wholly  insufficient  in 
capacity  to  contain  and  carry  off  the  water,  and  as  a  conse- 
quence it  overflowed  and  was  cast  in  large  and  injurious 
quantities  upon  the  land  of  plaintiff'. 

The  law  upon  the  subject  of  the  liability  of  municipal  cor- 
porations for  injuries  to  private  property,  in  consequence  of 
being  overflowed  with  surface  water  caused  by  improvements 


672  '  Pye  v.  City  of  Mankato.  [Minn. 

made  or  work  done  upon  streets,  is  left  in  a  state  of  great 
uncertainty  by  the  adjudicated  cases,  among  which  there  is 
much  conflict.  It  is  impossible  to  reconcile  all  of  the  cases 
on  the  subject,  and  hence  we  will  confine  ourselves  to  the  state- 
ment of  certain  principles,  which  we  think  are  settled  by  our 
own  decisions,  and  then  attempt  to  apply  these  principles  to 
the  facts  of  this  case;  and,  — 

1.  We  hold  that  a  municipal  corporation  is  liable  for  dam- 
ages caused  to  private  property  by  grading  streets  when  a 
private  owner  of  the  soil  over  which  the  streets  are  laid  would 
be  liable  if  improving  it  for  his  own  use:  O'Brien  v.  City  of  St. 
Paul,  25  Minn.  331;  33  Am.  Rep.  470;  Dyer  v.  City  of  St.  Paul, 

27  Minn.  457;  8  N.  W.  Rep.  272;  McClure  v.  City  of  Red  Wing, 

28  Minn.  186;  9  N.  W.  Rep.  767;  Henderson  v.  City  of  Min- 
neapolis, 32  Minn.  319;   20  N.  W.  Rep.  322. 

2.  We  do  not  admit  the  doctrine  of  servitudes  of  the  civil 
law,  but  have  adopted  the  common-law  rule  that  surface  water 
is  a  common  enemy,  which  each  owner,  in  the  necessary  and 
proper  improvement  of  his  land,  may  get  rid  of  as  best  he 
may,  subject,  however,  to  the  restriction  of  the  maxim  that  a 
man  must  so  use  his  own  as  not  unnecessarily  to  injure  an- 
other: Alden  v.  City  of  Minneapolis,  24  Minn.  254,  262;  O'Brien 
v.  City  of  St.  Paul,  25  Id.  331;  33  Am.  Rep.  470;  Hogenson  v. 
St.  Paul,  M.,  &  M.  Ry  Co.,  31  Minn.  224;  17  N.  W.  Rep.  374; 
and  consequently, — 

3.  A  city  is  not  liable  for  consequential  injuries  to  adjoining 
property,  resulting  from  raising  the  grade  of  a  street,  although 
the  result  may  be  to  interfere  with  the  flow  of  surface  water, 
and  cause  it  to  accumulate  on  the  premises  of  another:  Lee  v. 
City  of  Minneapolis,  22  Minn.  13;  Alden  v.  City  of  Minneapolis, 
24  Id.  254,  263;  O'Brien  v.  City  of  St.  Paul,  supra;  Henderson 
V.  City  of  Minneapolis,  supra. 

4.  Neither  is  a  city  liable  for  wholly  failing  to  provide  drain- 
age or  sewerage,  nor  for  a  mere  error  of  judgment  as  to  the 
plan  of  drainage,  nor  for  the  insufiicient  size  or  capacity  of 
drains  or  gutters  for  the  purpose  intended,  at  least  if  the  ad- 
joining property  is  not  in  any  worse  condition  than  if  no  gut- 
ters or  drains  whatever  had  been  constructed:  Alden  v.  City  of 
Minneapolis,  supra;  McClure  v.  City  of  Red  Wing,  supra;  Hen- 
derson  v.  City  of  Minneapolis,  supra. 

5.  But  a  city  will  be  liable  if  it  collects  and  gathers  up  sur- 
face water  by  artificial  means,  such  as  sewers  and  drains,  and 
casts  it  upon  the  premises  of  another  in  increased  and  inju- 


Jan.  1887.]  Pye  v.  City  of  Mankato.  673 

rioua  quantities.  Such  an  act  amounts  to  a  positive  trespass: 
O'Brien  v.  City  of  St.  Paul,  18  Minn.  163  (176);  Kobs  v.  City 
of  Minneapolis,  22  Id.  159;  O'Brien  v.  City  of  St.  Paul,  25  Id. 
331;  McClure  v.  City  of  Red  Wing,  28  Id.  186;  9  N.  W.  Rep. 
767;  Hogenson  v.  St.  Paul,  M.,  &.  M.  Ry  Co.,  31  Minn.  224;  17 
N.  W.  Rep.  374. 

Upon  the  facts  as  found  by  the  court,  we  think  this  case 
falls  within  the  principle  last  stated.  The  city  would  not  have 
been  liable  merely  for  interfering  with  the  flow  of  surface  water 
by  raising  the  grade  of  Washington  Street.  Neither  would  it 
probably  have  been  liable  if  it  had  omitted  entirely  to  con- 
struct a  drain  or  gutter  for  this  water,  nor  if,  by  constructing 
a  gutter  of  inadequate  capacity,  it  had  left  plaintiff's  premises 
in  no  worse  condition  than  if  it  had  failed  to  construct  one  at 
all.  But  in  this  case  it  is  not  strictly  the  failure  to  construct 
adequate  gutters  to  carry  off  the  water  that  is  complained  of; 
but  what  is  complained  of  is  the  positive  act  of  casting  water, 
in  large  and  injurious  quantities,  upon  plaintiff's  land  (which 
otherwise  would  not  have  gone  there),  by  means  of  this  gut- 
ter,— an  act  which  amounted  to  a  positive  invasion  of  his 
property.  Upon  neither  principle  nor  authority  is  there  an 
exemption  from  liability  when  an  individual  has  received  an 
injury,  accomplished  by  a  corporate  act  which  is  in  the  nature 
of  a  trespass  upon  his  property.  It  is  immaterial  whether  this 
gutter  was  expressly  constructed  in  order  to  cast  this  water  on 
plaintiff's  land,  or  whether  it  was  so  constructed  that  the  flood- 
ing must  be  the  necessary  result.  Having,  after  intercept- 
ing the  natural  flow  of  this  water,  undertaken  to  gather  up 
and  conduct  it  in  another  direction,  by  an  artificial  channel,  it 
was  incumbent  on  the  city  to  use  reasonable  care  to  do  this  in 
Buch  a  way  as  not  to  cause  a  positive  trespass  upon  the  lands 
of  others.  To  fail  to  do  this  is  negligence.  Such  was  the  fact 
in  this  case,  and  this  brings  it  within  the  principle  of  the  cases 
last  cited.  See  also  Ashley  v.  Port  Huron,  85  Mich.  296;  24 
Am.  Rep.  552. 

Order  aflirmed. 


DxraonvK  Sewkbs,  Crrr  whim  Liablb  tob:  See  Rice  v.  City  of  EtxuuviUe, 
68  Am.  Rep.  22;  City  qf  Fort  Wayne  v.  Coomb«,  67  Id.  82;  Morris  v.  City  qf 
Council  Bltu^e,  66  Id.  343;  Se\fert  v.  City  of  Brooklyn,  64  Id.  664,  note  671; 
Beth  V.  CUy  of  Fond  du  Lac,  63  Id.  279;  OiUuly  v.  City  qf  Madiaon,  53  Id.  299; 
SempUy.  Vicksburg,  52  Id.  181;  Frdmrgv.  CUy  qf  Davenfwrt,  60  Id.  737;  City 
qfEvanavUU  v.  Decker,  43  Id.  86;  Hardy  v.  City  of  Brooklyn,  43  Id.  182;  CUyqf 
Denver  v.  Capelli,  34  Id.  62;  Fair  v.  CUy  qf  Philadelphia,  32  Id.  456;  FtxmkUn 
AK.  St.  Rir.,  Vol.  I.  — 43 


674  Lewis  v.  Wetherell.  [Minn. 

W.  Co.  V.  PoHland,  24  Id.  1;  Ashley  v.  City  of  Pcyrt  Huron,  24  Id.  552,  note 
,  £66,  where  prior  cases  in  that  series  are  collected;  Kevins  v.  City  of  Peoria, 
89  Am.  Dec.  392,  note  401,  where  other  cases  in  that  series  are  collected; 
Stackhouse  v.  CUy  qf  Lafayette,  89  Id.  450,  note  457. 


Lewis  v.  Wetherell. 

[36  Minnesota,  886.  J 
Valid  Mortgagb  of  Land   Entered  as  Homestead  under  Laws  of 
United  States  may  be  made  by  the  claimant  after  he  has  received  hia 
final  certificate,  and  before  the  patent  therefor  has  been  issued  to  him. 

Action  to  recover  possession  of  land  purchased  at  a  mort- 
gage sale.     The  opinion  states  the  case. 

B.  F.  Hartshorn,  for  the  appellant. 

Gates  and  Kelsey,  for  the  respondent. 

By  Court,  Gilfillan,  C.  J.  The  defendant  made  a  "home- 
€tead  entry  "  upon  a  quarter-section  of  land  under  the  laws  of 
the  United  States,  lived  upon  and  improved  the  land,  made 
the  final  proof,  and  on  May  4,  1882,  received  the  final  certifi- 
cate entitling  him  to,  and  upon  which  he  some  time  afterwards 
received,  a  patent  for  the  land.  May  6,  1882,  he,  with  his 
wife,  executed  to  plaintiff  a  mortgage  upon  the  land,  contain- 
ing the  usual  power  of  sale,  and  covenants  of  warranty,  etc. 
Pebruary  13,  1885,  plaintiff  duly  foreclosed  the  mortgage  un- 
der the  power,  bid  in  the  land  at  the  sale,  received  the  proper 
certificate  of  sale  from  the  sheriff  making  the  same,  and  there 
was  no  redemption. 

The  defendant  claims  that  the  mortgage  was  void,  under  the 
provisions  in  section  2296,  Revised  Statutes  of  the  United 
States,  that  "  no  lands  acquired  under  the  provisions  of  this 
chapter  shall,  in  any  event,  become  liable  to  the  satisfaction 
of  any  debt  contracted  prior  to  the  issuing  of  the  patent  there- 
for." It  was  held  in  Townsend  v.  Fenton,  30  Minn.  528,  16 
N.  W.  Rep.  421,  that  an  agreement  made  before  the  patent 
issued  to  convey  the  land  after  it  should  issue  was  valid;  and 
in  Moore  v.  Mcintosh,  6  Kan.  39,  that  the  party  making  the 
entry  has,  after  he  is  entitled  to  a  patent,  but  before  it  issues, 
a  convey  able  interest  in  the  land;  and  in  Nycum  v.  McAllister, 
S3  Iowa,  374,  Cheney  v.  White,  5  Neb.  261,  25  Am.  Rep.  487, 
and  Jones  v.  Yoakam,  5  Id.  265,  that  a  mortgage  executed  by 
him,  after  he  is  entitled  to  a  patent,  but  before  it  has  issued,  is 


Feb.  1887.]  Cbaver  v.  Christian.  675 

valid.  These  cases,  we  think,  were  decided  on  a  correct  inter- 
pretation of  the  statute. 

The  provision  we  have  quoted  was  manifestly  intended  for 
the  protection  of  the  party  entering  the  land,  to  prevent  its 
appropriation  in  invitum  to  the  satisfaction  of  his  debts,  and 
not  for  the  purpose  of  disabling  him  from  dealing  with  it  as 
his  own  after  he  has  acquired  a  right  to  it  by  complying  with 
the  terms  of  the  law.  The  only  restraint  which  the  statute 
seems  to  impose  on  the  party's  power  of  disposition  applies 
only  to  a  time  before  he  makes  his  final  proofs:  See  sec.  2291. 
The  mortgage  was  therefore  valid. 

Judgment  aflfirmed. 


MoRTQAQE  OF  FEDERAL  HOMESTEAD:   See  Kirhaldie  V.   Larrahee,  89  Am. 
Dec.  205,  note  206. 


Graver  v.  Christian. 

f36  Minnesota.  413.J 
Whether  Servant  Assumed  Risk  or  was  Guilty  of  Contributory 
Negliqence  cannot  be  determined  by  a  trial  court  as  a  matter  of  law,  but 
must  be  submitted  to  the  jury  as  a  question  of  fact,  in  a  case  where  the 
evidence  shows  that  certain  dangerous  parts  of  the  machinery  in  an  ex- 
tensive flour-mill,  which  had  been,  to  the  plaintiff 's  knowledge,  formerly 
covered,  were,  at  the  time  of  the  accident  therefrom  to  him,  and  had 
been  for  several  days  prior  thereto,  uncovered  for  the  purpose  of  making 
repairs,  and  that  plaintiff  had  not  been  notiflcd  of  the  removal  of  the 
covering,  the  character  of  his  duties  being  such  as  to  reasonably  distract 
his  attention  from  the  condition  of  the  gearing  on  any  particular  ma- 
chine, and  it  not  being  hia  duty  to  look  after  the  repairs,  or  to  keep  the 
machinery  in  order. 

Action  to  recover  damages  for  personal  injuries.  The  plain- 
tiff had  A  verdict,  the  defendants  moved  for  a  new  trial,  which 
was  denied,  and  they  appealed.  The  other  facts  are  stated  in 
the  opinion. 

P.  M.  Babcock,  for  the  appellants. 

Weed,  Munro,  and  Edwin  Stone,  for  the  respondent. 

By  Court,  Vanderburoh,  J.  The  principles  involved  in 
the  cases  of  Sherman  v.  Chicago,  Mil.,  &  St.  Paul  R*y  Co.,  34 
Minn.  259,  Crater  v.  Christian,  34  Id.  397,  and  Barbo  v.  Baa- 
sett,  35  Id.  485,  and  which  were  considered  by  this  court  in 
the  determination  thereof,  will  necessarily  lead  to  an  aflBrm- 
ance  of  the  order  refusing  a  new  trial  in  this  case. 


676  Graver  v.  Christian.  [Minn. 

It  will  be  seen  that  the  liability  of  the  defendants  in  these 
cases  is  not  rested  solely  upon  the  ground  that  the  machinery 
or  instrumentalities  provided  were  not  fenced  or  covered, 
but  rather  upon  the  ground  that,  assuming  that  the  evidence 
tended  to  show  that  the  machinery  used  or  place  of  employ- 
ment was  unsafe  and  dangerous  to  the  servant,  the  jury  might 
find  that  the  master  had  failed  in  some  duty  which  he  owed 
the  servant,  so  that  it  might  be  determined  that  the  latter  did 
not  assume  the  risk  of  the  danger  incident  to  the  use  of  the 
machinery. 

In  Anderson  v.  Morrison,  22  Minn.  274,  it  was  held  that  "  if 
an  employer  should  set  an  adult,  who  had  capacity  to  take 
care  of  himself,  and  who  knew  the  risks,  to  do  a  dangerous 
work,  of  course  the  employer  would  not  be  liable  for  an  injury 
occurring  to  the  employee  in  doing  the  work;  and  it  would  be 
the  same  if  the  employee  were  a  minor,  but  of  sufficient  capa- 
city to  avoid  the  danger."  And  so  the  rule  is  stated  generally 
in  Sullivan  v.  India  Mfg.  Co.,  113  Mass.  396:  Neglect  to  fence 
or  cover  is  not  of  itself  sufficient  to  make  the  master  liable. 
He  must  have  been  guilty  of  some  negligence  in  the  premises, 
thus  failing  in  some  duty  owed  to  the  employee.  "  He  went 
to  work  in  the  place  pointed  out  by  the  defendants.  He  thus 
consented  to  the  dangers  attending  the  work,  all  of  which  were 
apparent;  and  if  he  had  sufficient  knowledge  and  capacity  to 
comprehend  them,  he  cannot  now  complain  that  such  place 
might,  at  moderate  expense,  have  been  made  safer." 

The  question  resolves  itself,  then,  into  one  in  respect  to  the 
negligent  conduct  of  the  master  under  the  circumstances  of 
each  particular  case.  It  must  be  conceded,  therefore,  if  the 
machinery  is  in  fact  found  to  be  dangerous,  that  the  duties 
growing  out  of  the  relations  of  master  and  servant  in  any  par- 
ticular case,  as  respects  the  use  of  it,  are  not  afiected  by  the 
fact  that  similar  machinery  is  ordinarily  left  unprotected  by 
other  employers.  Nor  is  it  material  that  the  original  object 
of  covering  the  gearing  alleged  to  be  dangerous,  and  by  which 
plaintiflf  was  injured,  was  to  keep  out  dust,  if  the  result  was  to 
afiford  protection,  and  the  plaintiff  was  not  notified,  either  in 
fact  or  by  the  circumstances,  of  the  removal  of  such  protec- 
tion. It  is  manifest  that,  if  practicable,  dangerous  machinery 
should  be  covered  so  as  to  remove  the  risk;  or  if  not  done,  that 
the  employee  should  have  reasonable  notice  of  the  risks  in- 
curred by  it:  Russell  v.  Minn.  &  St.  Louis  Ry  Co.,  32  Minn. 
230;  20  N.  W.  Rep.  147. 


Feb.  1887.]  Graver  v.  Christian.  677 

In  Barho  v.  Bassett,  supra,  the  cogs  by  which  the  plaintiff's 
hand  was  injured  had  been  uncovered  subsequent  to  his  em- 
ployment, without  his  knowledge,  and  he  had  not  noticed  the 
change.  It  was  held  to  be  a  fair  question  for  the  jury,  upon 
the  evidence  in  that  case,  whether,  considering  the  nature  of 
plaintiflF's  duties  and  occupation  in  the  mill  in  respect  to  the 
location  of  the  machinery  in  question,  the  change  might  not 
have  escaped  his  observation  witliout  negligence  on  his  part. 

In  Sherman  v.  Chicago  etc.  Ry  Co.,  supra,  the  evidence 
tended  to  show  that  the  space  between  the  main  and  guard 
rail  in  a  railway  tract,  usually  designated  as  "  the  frog,"  was 
dangerous  to  employees  engaged  in  coupling  cars,  etc.,  and 
that  in  the  yard  where  plaintiff's  intestate  had  been  accus- 
tomed to  work,  and  some  time  before  he  was  killed,  the  defend- 
ant had  adopted  the  device  of  inserting  wooden  blocks  in  the 
angle  made  by  the  rails  to  prevent  accidents  from  the  danger 
referred  to.  Subsequently  some  of  these  blocks  were  dis- 
placed, but  it  was  held  to  be  for  the  jury  whether  the  instances 
were  suflBciently  numerous  to  indicate  a  change  of  rule  by  the 
company  in  respect  to  such  protection;  and  the  charge  of  the 
court,  which  limited  the  evidence  of  negligence  of  the  deceased 
to  the  condition  of  the  particular  "frog"  in  which  his  foot  was 
caught,  and  his  knowledge  thereof,  was  sustained;  and  the  de- 
fendant's request — "that  if  the  deceased  knew  that  some  of 
the  rails  were  not  blocked,  and  did  not  complain,  but  remained 
in  the  employ  of  the  railroad  company,  although  he  did  not 
know,  when  he  went  in  to  uncouple  the  cars,  whether  that 
particular  rail  in  question  was  blocked  or  not,  plaintiff  cannot 
recover" — was  held  rightly  refused.  Nor  was  it  to  be  assumed, 
under  the  circumstances,  as  matter  of  law,  that  because  the 
condition  of  the  frog  in  question  was  open  to  view  that  the 
deceased,  in  the  exercise  of  reasonable  diligence,  ought  to  have 
known  the  danger,  and  hence  should  be  deemed  to  have 
assumed  the  risk. 

In  the  case  at  bar,  the  evidence  tended  to  show  that  the 
plaintifif  went  to  work  for  the  defendants  in  their  flour-mill 
early  in  July,  1881;  that  he  had  charge  of  the  "break-roll 
machines,"  so  called,  twenty-two  in  number,  which  were  run 
by  "belting,"  and  not  by  "gearing."  On  the  same  floor  of  the 
mill,  and  separated  by  a  gangway  twelve  feet  wide,  were  situ- 
ate twenty-eight  "  smooth-roll  machines,"  in  a  space  by  them- 
•elves,  and  under  the  charge  of  another  employee.  These  last 
machines  or  mills  were  each  run  in  part  by  "gearing."     From 


678  Graver  v.  Christian.  [Minn, 

six  to  seven  o'clock  each  morning,  except  Sundays,  during 
the  absence  of  the  other  miller,  the  plaintiflf  was  in  charge  of 
the  entire  floor.  As  to  the  smooth-rolls,  his  principal  duty 
seems  to  have  been  to  relieve  the  conveyors  when  choked  or 
clogged  60  that  the  grain  from  above  failed  to  reach  the  hop- 
per evenly,  as  occasion  might  require.  He  continued  in  the 
employment  of  the  defendants  until  the  latter  part  of  August, 
when  the  mill  shut  down,  and  he  was  notified  by  the  foreman 
to  return  to  his  place  when  the  mill  started  up  again,  which 
he  accordingly  did,  on  the  16th  or  17th  of  September  follow- 
ing. During  all  his  previous  term  of  service,  the  gearing  or 
cog-wheels  had  been  protected  with  tin  covers  sufficient  to  pre- 
vent accident  to  employees  working  around  the  mills.  Unless 
covered,  the  machinery,  as  the  evidence  tended  to  prove,  was 
dangerous,  but,  as  before  shown,  not  such  as  to  occasion  lia- 
bility to  the  mill-owners  where  the  employees  had  been  advised 
of  the  risk,  so  as  to  be  responsible  for  the  exercise  of  reason- 
able care  in  avoiding  it,  and  there  had  been  no  negligence  in 
that  behalf  on  the  part  of  the  master.  It  further  appears 
that  while  the  mill  was  shut  down  the  covers  were  removed 
from  the  gearing  for  the  purpose  of  repairs,  and  that  they  had 
not  all  been  replaced  when  the  plaintiff  returned  to  work,  nor 
before  he  was  injured ;  and  that  the  plaintiff  had  no  knowledge 
that  they  had  been  removed,  or  that  any  of  the  machines  were 
not  BO  protected,  up  to  the  time  he  was  injured.  How  many 
or  which  of  the  smooth-rollers  were  then  furnished  with  such 
covers  does  not  appear,  and  no  notice  was  given  him  in  the 
premises.  The  smooth-roller  mills  were  ranged  close  together, 
or  about  thirty  inches  apart,  in  rows  four  to  six  feet  apart, 
and  were  placed  on  platforms  connected  by  planks  ten  inches 
wide  for  the  workmen  to  walk  on.  They  were  driven  both 
by  belts  and  gearing  at  each  end,  the  gearing  being  composed 
of  cast-iron  cog-wheels,  seven  to  ten  inches  in  diameter,  running 
into  each  other,  and  moving  very  swiftly. 

In  the  morning  of  the  fifth  or  sixth  day  after  plaintiff's 
return  to  work,  while  left  alone  in  charge  of  that  flour  of  the 
mill,  he  was  notified  by  the  "  bolter,"  who  was  engaged  in 
another  part  of  the  mill,  that  some  of  the  conveyors  were 
clogged  or  choked,  and  immediately  proceeded  to  ascertain 
the  location  of  the  difficulty,  and  passed  among  the  smooth- 
roll  machines  till  he  came  to  No.  10,  when,  on  lifting  the  cover 
of  the  hopper,  and  discovering  that  the  grain  was  not  moving, 
he  struck  one  side  of  it  with  a  mallet,  standing  on  the  platform 


Feb.  1887.]  Graver  r.  Christian.  679 

or  plank,  and  then,  turning  to  strike  the  other  side  of  the  hop- 
per, he  made  a  misstep  or  slip  from  the  plank,  and  his  hand 
was  caught  in  the  gearing  on  one  end  of  the  machine,  which 
proved  not  to  be  covered,  and  was  injured  as  alleged.  There 
was  one  smooth-roller  between  No.  10  and  the  break-rolls, 
among  which  plaintiff  ordinarily  worked,  and  which  were  not 
raised  on  platforms.  In  certain  positions,  the  machine  No. 
10  in  question  could  be  observed  from  that  part  of  the  mill, 
and  others  not,  and  in  some  positions  the  uncovered  wheels 
were  in  plain  sight,  but  in  others  were  obscured  by  other 
machines  or  spouts  or  elevators. 

We  are  quite  clear  that,  upon  the  facts  as  shown  by  the 
evidence  in  plaintiff's  behalf,  the  question  whether  he  did  in 
fact  observe  the  exposed  condition  of  the  particular  machine 
in  question,  or,  in  the  exercise  of  reasonable  care  and  diligence, 
ought  to  have  known  it,  so  that  he  should  be  held  to  have 
assumed  the  risk,  was  for  the  jury.  Here  are  many  things  to 
be  considered,  and  prominent  among  them  is  the  fact  that, 
when  plaintiflf  returned  to  work,  he  understood  the  rule  to  bo 
that  the  gearing  of  all  the  machines  was  covered,  and  he  was 
never  notified  of  any  change.  And  in  respect  to  No,  10,  which 
was  one  out  of  nearly  thirty  machines  of  the  same  kind,  part  of 
which  were  covered  in  that  part  of  the  mill,  and  one  of  fifty 
to  be  looked  after  as  occasion  might  require,  it  is  to  be  remem- 
bered that  there  were  many  matters  requiring  his  attention,  a 
great  deal  of  machinery  in  the  mill,  and.  a  considerable  con- 
nected with  each  machine.  He  had  charge  of  the  grinding, 
and  it  was  not  his  duty  to  look  after  the  repairs,  or  to  keep 
the  machinery  in  order.  Leaving  out  Sunday  and  the  day  he 
commenced,  he  had  only  been  in  charge  three  or  four  mornings. 
And  the  character  of  his  duties  might  reasonably  be  such  as 
to  distract  his  attention  from  the  condition  of  the  gearing  on 
any  particular  machine,  particularly  if  he  was  required  to  act 
promptly  to  prevent  the  conveyors  from  becoming  "choked 
up."  The  evidence  of  plaintiff's  negligence,  therefore,  in  not 
observing  and  avoiding  the  danger,  is  certainly  not  conclusive. 
The  determination  of  the  question  depended  on  numerous 
facts  and  circumstances,  which  are  to  be  considered  and 
weighed  together  in  their  relation  to  the  issues  involved  in  the 
case  and  to  each  other.  In  such  cases,  the  general  rule  is,  that 
the  questions  of  fact  must  be  submitted  to  the  jury:  Masaoth 
V.  Delaware  etc.  Canal  Co.,  64  N.  Y.  524;  Railroad  Co.  v.  Stout^ 
17  Wall.  657,  6G4,  665,  and  cases. 

Order  affirmed. 


680  BoLiNGER  V.  St.  Paul  etc.  R.  R.  Co.  [Minn. 

Whbn  Servant  Assumes  Risks  of  Defects  in  Machineet  or  Appu- 
ANCES:  See  Fiak  v.  C.  P.  R.  R.,  ante,  p.  22;  and  Clapp  v.  Minneapolis  etc.  R'p 
Co.,  ante,  p.  629,  and  note  where  the  cases  in  the  American  Reports  and 
American  Decisions  on  this  subject  are  collected. 

CONTBIBUTOBT    NEGLIGENCE,    WHEN    QUESTION    FOR    JCRY:    See  Burna  V. 

Chicago,  M.  d;  St.  P.  R'y  Co.,  58  Am.  Rep.  227,  note  229;  Central  R.  R.  Co.  v. 
Crosby,  Id.  463;  Conner  v.  Citizen  St.  R'y  Co.,  55  Id.  177;  Cincinnati  I.  ds  C.  R'y 
Co.  V.  Gaines,  54  Id.  334;  Vicksburg  d-  M.  R.  R.  Co.  v.  McOowan,  52  Id.  205, 
note  208;  Stoner  v.  Pennsylvania  Co.,  49  Id.  754;  Louisville  C.  tfc  L.  R.  R.  Co. 
V.  Ooetz,  42  Id.  227;  Casszdy  v.  Angell,  34  Id.  690,  note  691;  Cleveland  C.  <fe  C. 
R.  R.  Co.  V.  Crawford,  15  Id.  633;  Johnson  v.  Bruner,  100  Am.  Dec.  613, 
note  618,  where  other  casea  in  that  series  are  collected;  Detroit  de  M.  R.  R. 
Co.  V.  Curtis,  99  Id.  141,  note  144,  collecting  cases  in  that  series. 


BoLiNGER  V.  St.  Paul  and  Duluth  K.  K.  Co. 

[36  Minnesota,  418.J 

Evidence  is  Sufficient  to  Sustain  Finding  of  Negligence  on  Pabt 
OF  Railroad  Compant  which  tends  to  show  that  at  the  time  of  the 
accident  by  which  plaintiff's  intestate,  while  crossing  a  street  in  a  sleigh, 
was  run  into  and  killed,  a  train  composed  of  box-cars  was  running  back- 
waurds  at  a  higher  rate  of  speed  than  allowed  by  the  city  ordinance;  that 
it  VTsa  after  dark  in  the  evening;  that  the  street  was  in  use  as  one  of  the 
thoroughfares  of  the  city;  that  there  was  at  the  time  no  watchman  or 
flag-man  at  the  crossing;  and  that  the  driver  of  the  sleigh  saw  or  heard 
no  signal,  and  had  no  notice  of  the  approach  of  the  train  in  time  to 
escape. 

It  is  FOB  Jury  to  Determine  whether  Speed  of  Railway  Train  was 
Reasonable,  and  the  management  thereof  otherwise  reasonably  pru- 
dent, at  a  street-crossing  in  a  city,  when  the  situation  at  the  crossing, 
the  manner  of  running  the  train,  the  number  and  duties  of  the  employees 
in  charge,  the  rato  of  speed,  the  extent  of  travel  on  the  street,  and  the 
opportunity  for  observation,  are  shown. 
'hetheb  Presence  of  Watchman  or  Other  Precautions  not  Taken 
WERE  Necessary  for  the  safety  of  the  public  is  a  question  to  be  deter- 
mined by  the  jury,  in  case  of  a  railway  accident  occurring  at  a  crossing 
on  a  public  thoroughfare  in  a  city. 

Where  Evidence  is  Offered  to  Show  that  Precautions  were  Taken 
BY  Deceased  and  those  with  him,  at  the  time  of  the  happening  of  a  rail- 
way accident  at  a  public  crossing  in  a  city,  it  is  for  the  jury  to  deter- 
mine whether  or  not  such  precautions  were  reasonably  sufficient. 

Verdict  of  Five  Thousand  Dollars  fob  Killing  Head  of  Family, 
a  strong,  healthy  man,  in  nuddle  life,  accustomed  to  earn  good  wages, 
who  left  a  wife  and  children  surviving  him,  will  not  be  set  aside  as  ex- 
cessive. 

Action  for  damages.    The  defendant  appealed  from  an  order 
denying  a  new  trial. 


Feb.  1887.]     Bolinger  v.  St.  Paul  etc.  R.  R.  Co.  681 

James  Smith,  Jr.,  J.  J.  Egan,  and  I.  V.  D.  Heard,  for  the  ap- 
pellant. 

John  D.  O^Brien  and  Otto  Kueffner,  for  the  respondent. 

By  Court,  Vanderburgh,  J.  The  deceased  was  fatally  in- 
jured on  the  evening  of  Christmas,  1884,  by  defendant's  cars, 
which  came  in  collision  with  the  sleigh  in  which  he  was  rid- 
ing, at  the  place  where  the  tracks  of  the  company  cross  Third 
Street,  in  the  city  of  St.  Paul.  The  accident  is  alleged  to  have 
been  caused  by  the  negligence  of  defendant,  particularly  in 
running  its  cars  at  a  dangerous  rate  of  speed,  and  in  failing  to 
give  any  proper  signal  or  warning  of  their  approach  at  the 
crossing.  The  evidence  tended  to  show  that  the  cars  in  ques- 
tion were  box-cars,  which  were  being  backed  or  pushed  across 
the  street  at  the  time;  that  they  were  running  at  a  higher  rate 
of  speed  than  allowed  by  the  city  ordinance;  that  it  was  after 
dark,  being  past  six  o'clock  in  the  evening;  that  the  street 
was  in  use  as  one  of  the  thoroughfares  of  the  city;  that  there 
was  then  no  watchman  or  flag-man  at  the  crossing;  and  that 
the  driver  of  the  vehicle  saw  or  heard  no  signal,  and  had  no 
notice  of  the  approach  of  the  cars  in  time  to  escape. 

The  evidence  was  undoubtedly  sufficient  to  sustain  a  find- 
ing of  negligence  on  defendant's  part  by  the  jury.  When  the 
situation  at  the  crossing,  and  the  manner  of  running  the  train, 
the  number  and  duties  of  the  employees  in  charge,  the  rate  of 
ppeed,  the  extent  of  travel  upon  the  street,  and  the  oppor- 
tunity for  observation,  were  shown,  it  was  peculiarly  for  the 
jury  to  determine  whether  the  rate  of  speed  was  reasonable, 
and  the  defendant's  management  of  the  train  otherwise  rea- 
sonably prudent:  Howard  v.  St.  Paul,  M.,  <&:  M.  Wy  Co.,  32 
Minn.  214;  20  N.  W.  Rep.  93. 

It  was  also  for  the  jury  to  determine  whether  a  flag-man  or 
other  precautions  not  used  were  necessary  for  the  safety  of 
travelers  at  the  particular  time  and  place,  and  how  far  any 
negligence  which  might  rightfully  be  imputed  to  the  defend- 
ant, in  any  of  the  particulars  we  have  mentioned,  was  the  effi- 
cient cause  of  the  accident:  Shaber  v.  St.  Paul,  M.,  &  M.  Ry 
Co.,  28  Minn.  103, 107, 108;  9  N.  W.  Rep.  575;  Kelly  v.  St.  Paul, 
M.,  &  M.  Ry  Co.,  20  Minn.  1;  11  N.  W.  Rep.  67. 

2.  It  is  not  so  clear  upon  the  evidence  that  there  may  not 
have  been  contributory  negligence  on  the  part  of  the  driver  of 
the  sleigh;  but  the  testimony  in  plaintifl''s  behalf  presented 
a  case  for  the  jury.     The  jury  would  consider  to  what  extent 


682  BoLiNGER  V.  St.  Paul  etc.  R.  R.  Co.  [Minn. 

the  position  of  the  freight-house,  or  cars  standing  on  the  street, 
as  shown  by  some  of  the  testimony,  obscured  the  vision  of  the 
parties  in  the  sleigh  as  they  were  approaching  the  track,  in 
connection  with  other  facts  above  referred  to,  and  also  the  evi- 
dence of  the  driver,  and  those  with  him,  that  they  looked  and 
listened  for  the  cars,  and  that  he  caused  the  horse  to  walk 
slowly  for  this  purpose  when  he  came  near  the  crossing,  and 
that  they  heard  or  saw  nothing  to  warn  them  of  dagger  until 
too  late  to  retreat.  It  was  for  the  jury  to  say,  if  they  be- 
lieved the  witnesses,  whether  these  precautions  on  the  part  of 
the  deceased  were,  under  the  circumstances,  reasonably  suffi- 
cient: Faber  v.  St.  Paul,  M.,  &  M.  Ry  Co.,  29  Minn.  465;  13 
N.  W.  Rep.  902;  Kelly  v.  St.  Paul,  M.,  &  M.  Ry  Co.,  supra. 

3.  The  jury  gave  round  damages,  but  the  trial  judge,  on 
the  motion  for  a  new  trial,  has  found  no  cause  to  interfere 
with  the  verdict  on  this  ground,  and  we  do  not  think  this 
court  warranted  in  declaring  them  excessive  under  the  evi- 
dence in  the  case.  The  deceased  was  a  strong,  healthy  man, 
forty-eight  years  of  age,  who  earned  good  wages  as  a  day- 
laborer.  He  left  a  wife  and  three  children,  two  of  whom  were 
under  the  age  of  twenty-one  years.  The  statute  authorizes 
an  action  for  damages  for  the  benefit  of  the  widow  and  next 
of  kin.  The  jury  in  such  cases  may  consider  prospective  ad- 
vantages of  a  pecuniary  nature  which  have  been  cut  oflF  by 
the  premature  death  (in  this  case)  of  the  husband  and  father. 
The  value  of  the  services  of  the  head  of  a  family  in  a  pecu- 
niary sense  cannot  be  limited  to  the  amount  of  his  daily 
wages  earned  for  their  support.  His  constant  daily  services, 
attention,  and  care  in  their  behalf,  in  the  relation  which  he 
sustained  to  them,  may  be  considered  as  well,  and  the  jury 
must  judge  of  the  circumstances  of  each  case.  In  such  cases 
damages  for  mere  loss  of  society  or  mental  sufiferings  are  not 
to  be  included.  The  damages  are  to  be  calculated  upon  a 
reasonable  expectation  of  pecuniary  benefit,  of  right  or  other- 
wise, from  the  continuance  of  the  life:  Shaher  v.  St.  Paul,  M., 
&  M.  Ry  Co.,  supra. 

"At  the  best,"  as  remarked  by  Allen,  J.,  in  Green  v.  Hudson 
River  R.  R.  Co.,  32  Barb.  25,  32,  "  the  measure  of  damages 
must  be  somewhat  indefinite,  and  much  must  be  left  to  the 
good  judgment  of  the  jury." 

The  statute  is  to  be  construed  as  a  remedial  one,  and  must 
have  a  liberal  interpretation  to  efiectuate  the  evident  purpose 
of  its  enactment.     The  determination  of  the  amount  of  dam- 


April,  1887.]    Jackson  and  "Wife  v.  Holbrook.  683 

ages,  however,  must  be  a  judicial  one,  and  is  not  left  to  the 
uncontrolled  discretion  of  the  jury;  and  verdicts  have  not  in- 
frequently been  set  aside  or  reduced  in  this  class  of  cases;  but 
very  rarely,  we  think,  in  a  case  like  this,  where  the  deceased 
is  the  head  of  a  family,  in  middle  life,  apparently  able  to  care 
and  provide  for  them,  and  in  various  ways  render  them  valu- 
able assistance  and  service:  Carey  v.  Berkshire  R.  R.  Co.,  1 
Cush.  475;  48  Am.  Dec.  616,  641;  3  Sutherland  on  Damages, 
282,  283;  Tilley  v.  Hxidson  River  R.  R.  Co.,  29  N.  Y.  252. 
Order  affirmed. 


RuNNDJO  Train  at  Unlawful  Rate  of  Speed  a3  Evidence  of  Nbgli- 
OENCE:  See  Vichsburg  <k  M.  R.  R.  Co.  v.  McOowan,  52  Am.  Rep.  205;  Cor- 
reU  V.  B.  C.  R.  &  M.  R.  R.  Co.,  18  Id.  22. 

Duty  to  Give  Wabnino  Signals  at  Railway  Crossing:  See  Ransom  v. 
Chicago,  St.  P.,  M.,  d-  0.  R'y  Co.,  61  Am.  Rep.  718;  Pennsylvania  Co.  v. 
Hensil,  36  Id.  188;  St.  Louis,  J.,  &  C.  R.  R.  Co.  v.  Terhune,  99  Am.  Dec. 
504,  note  506,  where  other  cases  in  that  series  are  collected;  O'Mara  v.  Hud- 
ton  R.  R.  R.  Co.,  98  Id.  61,  note  64,  collecting  other  cases. 

Flag-man,  when  Railroad  Company  Bound  to  Keep  at  Crossing:  See 
Houghkirk  v.  President  etc.  Delaicare  etc.  Co.,  44  Am.  Rep.  370;  Hart  v. 
Chicago,  R.  I.,  Je  P.  R.  R.  Co.,  41  Id.  93;  PUtsburgh,  C,  Jc  St.  L.  R'y  Co.  v. 
Yundt,  41  Id.  580;  Welsch  v.  Hannibal  <Sc  St.  J.  R.  R.  Co.,  37  Id.  440,  note 
443;  McOrathv.  New  York  C.  A  H.  R.  R.  R.  Co.,  17  Id.  359,  note  363,  col- 
lecting other  cases;  Pennsylvania  R.  R.  Co.  v.  Bamett,  98  Am.  Dec.  346,  note 
350,  where  other  cases  in  that  series  are  collected. 

flxcESSivs  Damages:  SeeScJimidtv.  Milwaukee  Je  St.  P.  R'y  Co.,  99  Am. 
Dec.  158,  note  164,  where  other  cases  in  that  series  are  collected. 


Jackson  and  Wife  v.  Holbrook. 

[86  Minnesota,  494.] 

In  Minnesota,  Holder  of  Junior  Judgment  Lien  Acquires  No  Pref- 
erence over  Senior  Judgment  Lien  by  virtue  of  prior  proceedings  to 
execute  his  judgment,  the  senior  judgment  creditor  not  being  a  party  to 
such  proceedings.  Nor  is  a  different  rule  applied  where  the  judgment 
debtor  has  made  fraudulent  conveyances,  which  are  void  alike  as  respects 
both.  The  judgments,  in  such  cases,  are  liens  at  law,  and  as  to  real 
estate  necessarily  take  precedence  according  to  the  date  of  the  record. 

Judgment  Creditor  may  Rest  Exclusively  upon  his  Rights  and  Reme- 
dies at  Law,  without  invoking  the  aid  of  a  court  of  equity. 

Balk  upon  Junior  Judgment  is  Subject  to  All  Such  Prior  Judgments 
M  are  in  fact  liens  upon  the  land  sold,  and  the  purchaser  at  such  sale 
takes  Bnbj«>ct  to  the  lien  of  a  senior  judgment. 

Fact  that  Conveyance,  under  Which  Title  Appears  to  be  in  Third 
PutsoN,  IS  Fraudulent,  and  of  no  effect,  may  be  established  by  a  suit 
in  equity,  or  it  may  be  proved  in  an  action  at  law  by  any  competent 
evidence. 


684  Jackson  and  Wife  v.  Holbrook.  [Minn. 

Action  at  Law  bt  Execution  Purchaser  to  Test  Valimtt  of  his  Titlb 
IS  NOT  Necessarily  Barred  because  the  judgment  creditor  has  lost  his 
equitable  remedy  to  set  aside  the  fraudulent  conveyance  by  lapse  of  time. 

Action  for  breach  of  covenants  against  encumbrances  in  two 
warranty  deeds  from  the  defendant  to  the  plaintiffs.  In  No- 
vember, 1873,  one  Mendenhall,  being  the  owner  of  the  prem- 
ises conveyed  by  said  deeds,  conveyed  them  to  one  Crump. 
Afterwards  Mendenhall  procured  from  Crump  a  power  of  at- 
torney to  sell  and  convey  the  property,  and  in  October,  1874, 
he  conveyed  it,  as  such  attorney,  to  Welles  and  Lowry.  This 
conveyance  was  alleged  to  have  been  made  to  defraud  cred- 
itors. In  January,  1874,  two  judgments  were  docketed  against 
Mendenhall,  one  in  favor  of  one  Gray,  and  the  other  in  favor 
of  Van  Valkenburg  &  Co.  In  August,  1876,  execution  issued 
on  the  latter  judgment,  under  which,  in  September,  1876,  the 
lots  were  sold  to  one  Smith,  whose  certificate  was  recorded  in 
January,  1879.  No  redemption  was  made  from  this  sale,  and 
in  August,  1881,  Smith  conveyed  all  his  right,  title,  and  inter- 
est to  one  Wilson.  In  1875,  seven  judgments  were  docketed 
against  Mendenhall.  In  February,  1876,  the  judgment  cred- 
itors in  these  seven  judgments  brought  suit  against  Menden- 
hall, Crump,  Welles,  and  Lowry,  to  have  the  deed  from  Men- 
denhall and  that  from  Crump  set  aside  as  fraudulent  as  to 
them.  A  decree  was  entered  in  this  suit  declaring  the  deeds 
void  as  against  the  plaintiffs'  judgments.  Executions  were 
then  issued  on  these  judgments,  under  which  the  lots  were 
Bold  in  July,  1877.  The  lots  were  sold  to  Wilson,  and  no  re- 
demption was  made  from  this  sale.  In  June,  1878,  and  in 
September,  1881,  Wilson  conveyed  the  lots  by  quitclaim  deeds 
to  the  defendant.  Afterwards,  in  September,  1881,  and  in 
April,  1882,  the  defendant  executed  to  the  plaintiffs  the  deeds 
containing  the  covenants  in  question.  In  October,  1883,  exe- 
cution issued  on  the  Gray  judgment;  under  which,  in  Decem- 
ber, 1883,  the  lots  were  sold  to  one  Whitney.  In  December, 
1884,  in  order  to  protect  their  title,  the  plaintiffs  redeemed  from 
this  sale,  paying  $1,002.80,  the  amount  required  to  effect  a  re- 
demption, which,  with  the  interest  thereon,  the  plaintiffs  seek  to 
recover.  At  the  trial,  the  plaintiffs  proved  the  sale  under  the 
Gray  judgment;  also  the  proceedings  in  the  suit  in  which  Men- 
denhall's  and  Crump's  deeds  were  adjudged  void  as  to  the  judg- 
ment creditors,  who  were  plaintiffs  in  that  suit,  and  the  sale  to 
Wilson,  made  in  July,  1877.  The  plaintiffs  then  called  Men- 
denhall as  a  witness,  and  asked  him  whether,  at  the  time  he 


April,  1887.]    Jackson  and  Wife  v.  Holbrook.  685 

conveyed  to  Crump,  he  owed  the  debt  on  which  the  latter,  in 
January,  1874,  recovered  his  judgment.  This  was  ruled  out  by 
the  court.  The  plaintiffs  then  offered  to  prove  by  the  witness 
that  in  November,  1873,  when  he  conveyed  to  Crump,  he  wa& 
insolvent,  and  was  indebted  to  Gray  in  the  amount  for  which 
the  latter  recovered  his  judgment;  and  that  the  deeds  to  and 
from  Crump  were  without  consideration,  and  for  the  purpose 
of  hindering  and  defrauding  Gray  and  other  creditors  of  Men- 
denhall.  This  evidence  was  excluded  as  incompetent,  irrele- 
vant, and  immaterial.  The  plaintiffs  then  offered  to  prove 
that  Wilson's  purchase  at  the  sale,  in  August,  1877,  was  made 
at  defendant's  request,  and  for  her  benefit.  This  also  was  ex- 
cluded on  the  same  objection.  The  court  dismissed  the  actiony 
on  defendant's  motion,  and  the  plaintiffs  appealed  from  aa 
order  denying  them  a  new  trial. 

Torrance  and  Fletcher,  for  the  appellants. 

Woods,  Hahn,  and  Kingman,  for  the  respondent. 

By  Court,  Vanderburgh,  J.  Under  the  statutes  of  this 
state,  the  holder  of  a  junior  judgment  lien  acquires  no  prefer- 
ence over  a  senior  judgment  lien  upon  the  same  real  estate,  by 
virtue  of  prior  proceedings  to  execute  his  judgment;  and,  as 
to  all  persons  claiming  under  a  judgment  debtor  subsequent 
to  the  lien  of  the  senior  judgment  creditor,  the  rights  of  the 
latter  are  superior,  and  cannot  be  divested  by  any  proceedings 
of  a  junior  lien-holder,  claiming  under  the  same  debtor,  to 
which  the  senior  creditor  is  not  a  party.  The  whole  policy  of 
the  statutes  in  respect  to  the  preferences  of  prior  judgment 
liens  against  real  estate  would  be  subverted,  if  a  junior  judg- 
ment creditor  could  acquire  a  preference  merely  by  virtue  of 
superior  diligence  in  taking  proceedings  to  enforce  his  lien; 
nor  do  we  understand  that  the  law  recognizes  any  different 
rule,  as  between  judgment  creditors,  where  the  judgment 
debtor  has  made  prior  fraudulent  conveyances  which  are  void 
alike  as  respects  both.  The  judgments  in  such  cases  are  liens 
at  law,  and,  as  to  real  estate,  necessarily  take  precedence  ac- 
cording to  the  date  of  the  record:  Wadsworth  v.  Schisselbauer, 
32  Minn.  84;  19  N.  W.  Rep.  390. 

The  judgment  creditor  may  rest  exclusively  upon  his  rights 
and  remedies  at  law,  without  invoking  the  aid  of  a  court  of 
equity:  Tupper  v.  Thompson,  26  Minn.  385;  4  N.  W.  Rep. 
621;    Campbell  v.  Jones,  25  Minn.  155;   Kumler  v.  Ferguson, 


686  Jackson  and  Wife  v.  Holbrook.  [Minn. 

22  Id.  117.  The  procedure  in  this  class  of  cases  is  very 
clearly  and  satisfactorily  discussed  by  Comstock,  J.,  in  Chav^ 
tauque  County  Bank  v.  Risley,  19  N.  Y.  369,  375,  who  says, 
after  considering  the  equitable  remedy  as  between  creditors: 
"  But  no  creditor  having  a  statutory  lien  by  judgment  can  be 
compelled  to  take  the  equitable  remedy.  He  may,  if  he  pre- 
fer, stand  upon  his  lien,  and  the  means  which  the  law  has 
given  him  of  enforcing  it.  If  his  debtor  has  made  a  prior 
fraudulent  conveyance,  he  may  nevertheless  sell  upon  his  exe- 
cution, and  the  purchaser  will  have  the  right,  and  will  take 
the  risk,  of  impeaching  such  conveyance.  If  his  judgment 
has  been  recovered  before  other  creditors  have  instituted  pro- 
ceedings in  equity,  nothing  in  the  course  or  in  the  result  of 
those  proceedings  can  affect  his  rights.  A  lis  pendens  filed 
with  the  bill  or  actual  notice  of  the  suit  may,  perhaps,  sub- 
ject all  judgments  afterwards  recovered  to  any  decree  which 
shall  be  made,  and  render  them  subordinate  to  a  receiver's 
sale":  75  Am.  Dec.  347,  360,  and  note;  and  see  Whitens  Bank 
V.  Farthing,  101  N.  Y.  344;  4  N.  E.  Rep.  734;  O'Brien  v. 
Browning,  49  How.  Pr.  109;  Morss  v.  Purvis,  5  Thomp.  &  C. 
140,  141,  note;  Shand  v.  Hanley,  71  N.  Y.  319,  324;  Bergen  v. 
Snedeker,  8  Abb.  N.  C.  50,  58;  Union  Nat.  Bank  v.  Warner,  12 
Hun,  306;  Bergen  v.  Carman,  79  N.  Y.  146,  153. 

A  judgment  creditor  seeking  relief  against  prior  fraudulent 
conveyances  of  land  has  the  choice  of  three  remedies.  He 
may  sell  the  debtor's  land  upon  execution  issued  on  his  judg- 
ment, and  leave  the  purchaser  to  contest  the  validity  of  the  de- 
fendant's title  in  an  action  of  ejectment;  or  secondly,  he  may 
bring  an  action  in  equity  to  remove  the  fraudulent  obstruction 
to  the  enforcement  of  his  lien  by  execution,  and  await  the  result 
of  the  action  before  selling  the  property;  or  thirdly,  he  may,  on 
the  return  of  an  execution  unsatisfied,  bring  an  action  in  the 
nature  of  a  creditor's  bill,  to  have  the  conveyance  adjudged 
fraudulent  and  void  as  to  his  judgment,  and  the  land  sold  by 
a  receiver  or  other  officer  of  the  court,  and  the  proceeds  applied 
to  the  satisfaction  of  the  judgment,  as  in  the  case  of  equitable 
interests  the  debtor's  assets  are  reached  and  applied:  Erickson 
V.  Quinn,  15  Abb.  Pr.,  N.  S.,  166. 

In  the  first  two  classes,  the  creditor  enforces  his  judgment 
at  law,  and  the  sale  upon  execution  must  necessarily  be  sub- 
ject to  prior  statutory  liens.  The  purchaser  in  such  cases 
succeeds  to  such  title  only  as  the  debtor  had,  treating  the 
debtor's  fraudulent  transfer  as  void:  Freeman  on  Executions, 


April,  1887.]    Jackson  and  Wife  v.  Holbrook  687 

Bee.  447.  As  to  cases  falling  within  the  second  class,  the  ob- 
ject of  the  equitable  suit  is  to  make  the  legal  remedy  more 
effective.  In  such  case,  no  trust  is  created  in  respect  to  the 
property,  but  the  creditor  falls  back  upon  his  legal  remedy, 
and  instead  of  bringing  his  equitable  suit  before  the  sale,  he 
may,  if  necessary,  maintain  it  after  sale  in  the  form  of  an  ac- 
tion to  remove  a  cloud  from  his  title:  Encksonv.  Quinn,  supra. 
And  where  assets  are  applied  by  the  court  in  creditors'  suits 
as  respects  real  estate,  the  rule  is,  as  in  other  cases,  to  prefer 
prior  liens  in  the  distribution.  "  When  the  law  gives  priority, 
equity  will  not  destroy  it;  and  especially  where  legal  assets 
are  created  by  statute  (as  the  judgment  lien  was  here),  they 
remain  so,  though  the  creditors  be  obliged  to  go  into  equity 
for  assistance.  The  legal  priority  will  be  protected  and  pre- 
served in  chancery":  Kent,  C.  J.,  in  Codmse  v.  Gelston,  10 
Johns.  507,  522;  Scouton  v.  Bender^  3  How.  Pr.  185;  Wiswall  v. 
Sampson,  14  How.  52,  67. 

In  some  states,  by  statute,  while  all  judgments  are  liens 
upon  the  realty  of  the  debtor,  yet  the  creditor  who  first  takes 
proceedings  to  execute  his  judgment  thereby  secures  the  pri- 
ority: Dunham  y.  Cox,  64  Am.  Dec.  460;  10  N.  J.  Eq.  437, 
466;  Nixon's  N.  J.  Dig.  724;  and  the  same  rule  prevails  in 
Alabama  and  several  other  states. 

In  Lyon  v.  Robbins,  46  111.  276,  the  court  treat  the  interest  of 
the  judgment  debtor  in  the  land,  after  the  fraudulent  convey- 
ance, as  a  mere  equitable  one,  and  deny  that  in  such  cases 
judgments  become  liens  on  the  land  in  the  order  of  their  ren- 
dition. The  same  rule  is  recognized  in  Bridgman  v.  McKis- 
sick,  15  Iowa,  260,  under  a  statute  of  that  state.  This  is  not, 
however,  the  general  rule,  nor  the  rule  in  this  state,  where  the 
lien  of  the  judgment  creditor  is  recognized  and  treated  as 
valid,  and  one  which  may  be  enforced  at  law  notwithstanding 
the  prior  fraudulent  conveyance. 

The  defendant  acquired  title  under  an  execution  sale  of 
certain  real  estate,  which  she  afterwards  conveyed  to  the 
plaintiffs  by  deed  of  warranty,  with  covenants  against  encum- 
brances. Subsequently  the  same  land  was  sold  upon  execu- 
tion issued  upon  a  judgment  rendered  and  docketed  against 
the  same  judgment  debtor,  and  prior  to  the  one  under  which 
the  defendant  acquired  title,  and  the  plaintiffs  allege  that 
they  were  obliged,  in  order  to  preserve  the  title  to  the  prem- 
ises, to  redeem  the  same  by  paying  the  amount  for  which  they 
were  so  sold.     The  judgments  under  which  the  defendant  do- 


688  Jackson  and  Wipe  v.  Holbrook.  [Minn. 

rived  title  were  rendered  in  and  subsequent  to  the  month  of 
August,  1875,  and  the  judgments  upon  which  the  subsequent 
sale  was  made  were  recovered  in  the  years  1874  and  1875, 
prior  to  the  first-mentioned  date.  The  first  execution  sale 
took  place  in  August,  1877,  and  the  second  on  the  twenty-sec- 
ond day  of  December,  1883,  and  the  redemption  referred  to 
was  made  December  22,  1884.  A  prior  conveyance  of  the 
premises,  fraudulent  as  to  creditors,  was  made  by  the  debtor  in 
the  year  1873.  Prior  to  the  first  execution  sale,  the  judgment 
creditors  first  mentioned  brought  an  action  in  equity  to  set 
aside  such  conveyance  as  an  obstruction  to  the  enforcement  of 
their  liens,  and  a  judgment  was  duly  rendered  therein,  declar- 
ing such  conveyance  fraudulent  and  void,  and  setting  it  aside 
as  to  such  judgment  creditors,  and  thereupon  the  execution 
sale  upon  their  judgments  was  had  as  above  stated. 

It  necessarily  results,  from  the  propositions  previously  laid 
down  in  this  opinion,  that,  if  the  prior  judgments  were 
valid  liens,  the  rights  of  purchasers  at  the  execution  sale 
thereon  were  not  and  could  not  be  subordinated  to  the  rights 
of  purchasers  under  the  latter  judgments.  Neither  party 
claims  under  the  fraudulent  grantee,  but  both  claim  in 
opposition  thereto.  As  to  every  one  except  bona  fide  pur- 
chasers claiming  under  a  conveyance  from  the  debtor  made 
prior  to  their  judgments,  they  had  fully  complied  with  all  the 
legal  requirements  necessary  to  preserve  and  enforce  their 
rights  at  law  when  the  judgments  were  duly  recorded,  and  a 
sale  made  within  the  statutory  time;  and  they  were  entitled 
to  establish  the  existence  of  their  lien  by  evidence  of  the  fraud 
in  an  action  at  law  as  well  as  in  equity:  Campbell  v.  Jones, 
supra.  It  is  clear,  we  think,  that  in  this  case  the  junior  credi- 
tors acquired  no  priority  merely  by  virtue  of  their  equitable 
action  and  execution  sale.  Whether,  if  the  proceedings  had 
fallen  within  the  third  class  above  mentioned,  and  the  sale 
had  been  made  by  a  receiver,  and  the  senior  creditors  had  not 
been  brought  in,  the  rule  would  have  been  otherwise,  we  need 
not  determine,  though  it  is  held  in  Chautauque  County  Bank 
V.  Risley^  supra,  that  it  would  not;  and  the  soundness  of  the 
conclusion  in  that  case,  that  a  statutory  lien  upon  real  estate 
cannot  be  divested  by  the  court  in  proceedings  to  which  tho 
holder  is  not  a  party,  can  hardly  be  questioned:  Derby  v. 
Yale,  13  Hun,  273,  278;  White's  Bank  v.  Farthing,  101  N.  Y. 
344;  4  N.  E.  Rep.  734. 

The  safer  practice  in  equity,  however,  in  that  class  of  cases^ 


April,  1887.]    Jackson  and  Wife  v.  Holbrook.  689 

is,  for  all  the  judgment  creditors  to  unite  in  the  action,  or  it 
may  be  brought  in  behalf  of  plaintiffs  and  all  other  creditors, 
or  such  as  consent  to  come  in  and  be  bound  by  the  decree: 
Hammond  v.  Hudson  etc.  Machine  Co.,  20  Barb.  378;  5  Wait's 
Practice,  644;  2  Van  Santvoord's  Equity  Practice,  134;  Scouton 
V.  Benders,  supra. 

In  Wiswall  v.  Sampson,  supra,  it  was  held  that,  where  a 
court  of  equity  laid  hold  of  the  property  through  the  appoint- 
ment of  a  receiver,  a  trust  was  thereby  created  for  the  benefit 
of  the  creditors,  to  be  paid  in  the  order  of  their  priority,  and 
that  all  lien-holders  were  obliged  to  come  into  that  court,  and 
seek  their  remedy  there;  yet  that  it  was  the  duty  of  the  court, 
in  a  suit  by  a  junior  judgment  creditor,  to  take  care  that  the 
prior  liens  and  encumbrances  should  be  provided  for,  and  to 
adopt  proper  measures,  by  reference  to  a  master  or  otherwise, 
to  ascertain  them.  In  that  case  the  record  of  the  prior  liens, 
as  well  as  that  of  the  plaintiff  in  the  suit,  had  been  anticipated 
by  a  fraudulent  conveyance,  and  the  court  held  that  a  sale 
upon  execution  by  the  prior  judgment  creditors,  pending  the 
equity  suit,  was  a  contempt  of  court,  and  it  accordingly  re- 
fused to  recognize  the  rights  acquired  thereunder.  It  was  not 
questioned,  however,  that  they  might  have  been  valid  liens, 
entitled  to  priority:  Chautauque  County  Bank  v.  Risley,  supra; 
Derby  v.  Yale,  supra;  Whitens  Bank  v.  Farthing,  supra;  Rogers 
V.  Ivers,  23  Hun,  424. 

Doubtless  some  confusion  in  the  authorities  has  arisen  from 
a  failure  to  observe  the  distinction  between  creditors'  bills 
proper,  filed  to  reach  equitable  assets,  upon  which  no  liens 
exist  till  suit  brought,  and  actions  to  set  aside  fraudulent  con- 
veyances of  real  estate,  where  there  may  be  valid  statutory 
liens,  unaffected  by  a  prior  void  conveyance.  As  before  inti- 
mated, the  purchaser  at  the  first  execution  sale  acquired  only 
the  rights  of  the  debtor  at  the  time  of  the  docketing  of  the 
judgments  (assuming  the  debtor's  conveyance  to  be  fraudu- 
lent), and  caveat  emptor  would  apply  to  such  purchaser  and 
his  grantees,  as  respects  the  rights  of  prior  lien-holders  whose 
judgments  have  been  duly  rendered  and  docketed  against  the 
same  debtor:  Frost  v.  Yonkers  Savings  Bank,  70  N.  Y.  553,  560; 
Benedict  v.  Jones,  18  Hun,  527;  Stafford  v.  Williams,  12  Barb. 
240;  Freeman  on  Executions,  sec.  447;  6  Wait's  Actions  and 
Defenses,  746,  and  cases;  Barron  v.  Mullin,  21  Minn.  374; 
Johnson  V.  Robinson,  20  Id.  153  (189,  193);  Butman  v.  James^ 
84  Id.  647;  27  N.  W.  Rep.  66. 

AM.  ST.  Bip.,  Vol.  I.  —44 


690  Jacjcson  and  Wife  v.  Holbrook.  [Minn. 

The  case  is  not  within  the  registration  laws.  The  sale  upon 
a  junior  judgment  is  necessarily  subject  to  all  such  prior  judg- 
ments as  are  in  fact  liens  at  law  upon  the  land  sold,  and  the 
purchaser  labors  under  the  disadvantage  of  uncertainty  as  to 
the  existence,  nature,  and  amount  of  such  liens,  unless  par- 
ticularly ascertained  before  the  sale.  The  fact  that  a  convey- 
ance under  which  the  title  appears  to  be  in  a  third  person  is 
fraudulent,  and  of  no  effect,  may  be  established  by  a  suit  in 
equity,  or  it  may  be  proved  in  an  action  at  law  by  any  compe- 
tent evidence:  Campbell  V.Jones  and  Tuppery.  Thompson,  supra. 

If,  therefore,  the  purchaser  under  the  second  sale  in  ques- 
tion had  brought  ejectment  against  this  defendant,  being  in 
possession  claiming  under  the  first  sale,  he  would  have  been 
entitled  to  recover  if  he  belongs  to  the  class  of  creditors  against 
whom  the  transfer  was  void,  which  might  have  been  shown  by 
evidence  similar  to  that  offered  in  the  trial  court  in  this  case. 
If  the  debtor  or  his  grantee  had  redeemed  from  the  first  sale, 
then  the  senior  judgment  creditor  would  have  been  compelled 
to  proceed  against  them;  but,  in  the  absence  of  such  redemp- 
tion, the  rights  of  the  debtor  and  his  grantee  were  wholly  di- 
vested, and  they  were  no  longer  necessary  parties  in  a  suit 
involving  the  question  whether  defendant  held  the  title  sub- 
ject to  or  clear  of  the  alleged  prior  lien  of  the  senior  judgment: 
Campbell  v.  Jones,  supra.  If,  then,  the  purchaser  under  the 
senior  judgment  might  maintain  ejectment  against  this  de- 
fendant, it  is  clear  that  the  judgment  was  an  encumbrance 
which  constituted  a  breach  of  defendant's  covenant  in  her 
deed  to  the  plaintiffs,  and  we  think  this  action  will  lie.  In 
Chautauque  County  Bank  v.  Risley,  supra,  the  action  was  held 
well  brought  by  the  assignee  of  the  purchaser  under  an  execu- 
tion sale  against  a  purchaser  under  a  receiver's  sale  in  a  cred- 
itor's suit;  and  the  judgments  are  at  least  prima  facie  evidence 
of  the  relation  of  debtor  and  creditor  and  the  amount  of  the 
indebtedness,  and  this  evidence  may  be  supplemented  by  evi- 
dence aliunde,  showing  that  the  cause  of  action  existed  at  the 
time  of  the  fraudulent  transfer:  Vogt  v.  Ticknor,  48  N.  H.  242, 
247,  and  cases;  Candee  v.  Lord,  2  N.  Y.  269,  275;  51  Am.  Dec. 
294;  Hersey  v.  Benedict,  15  Hun,  282;  Goodnow  v.  Smith,  97 
Mass.  69. 

We  suppose  the  evidence  should  be  substantially  the  same 
as  was  required  under  the  chancery  practice,  upon  an  exami- 
nation pro  interesse  suo,  where  a  judgment  creditor  applies  to 
be  let  in,  and  to  share  in  the  distribution  of  the  assets  of  the 


April,  1887.]    Jackson  and  "Wife  v.  Holbrook,  691 

debtor:  Wiswall  v.  Sampson,  14  How.  52,  65,  66,  and  cases 
cited;  Bergen  v.  Carman,  79  N.  Y.  146,  152. 

We  see  no  objection  to  tbe  evidence  offered  on  behalf  of  the 
plaintiffs,  and  think  its  rejection  was  error. 

A  judgment  duly  recorded  is  a  lien,  under  our  statute,  on 
real  estate  for  ten  years,  and  may  be  enforced  at  any  time 
within  that  period,  subject  to  the  rights  of  bona  fide  purchasers 
claiming  under  the  debtor's  grantee,  of  which  the  creditor  would 
take  the  risk  in  case  of  delay.  In  this  case,  if  any  priority 
was  acquired  under  the  junior  judgments,  it  was  because  they 
were  first  executed,  and  we  are  unable  to  see  how  the  defend- 
ant was  prejudiced  by  the  subsequent  delay  of  the  senior  credi- 
tors. She  was  bound  to  take  notice  of  the  fraudulent  character 
of  the  judgment  debtor's  conveyance,  as  respects  a  certain 
class  of  creditors,  and  that  the  equity  suit  did  not  necessarily 
conclude  creditors  whose  judgments  against  the  same  debtor 
had  been  previously  recorded.  It  is  true  that  the  lapse  of  six 
years  may  have  cut  off  the  right  of  the  purchaser  at  the  last 
execution  sale  to  bring  an  equitable  suit,  but  under  the  de- 
cisions of  this  court  the  alleged  fraudulent  conveyance  "  might 
bo  treated  as  a  nullity,  and  the  property  subjected  to  sale  upon 
execution,  at  the  instance  of  any  judgment  creditor,  the  same 
as  though  no  transfer  had  been  made  ":  Tupper  v.  Thompson, 
supra.  He  might  therefore  rely  wholly  upon  his  remedy  at 
law.  But  a  cause  of  action  at  law,  in  ejectment  or  otherwise, 
would  not  accrue  until  the  purchase  at  the  execution  sale,  and, 
if  it  be  conceded  that  the  fraudulent  character  of  the  prior 
conveyance  would  be  involved,  the  purchaser  would  be  enti- 
tled to  at  least  six  years  in  which  to  assert  his  claim.  Upon 
this  question  the  court  in  Hager  v.  Shindler,  29  Cal.  48,  61, 
say:  "It  is  no  answer  to  say  that  the  plaintiff,  while  yet  a 
judgment  creditor,  might  have  sued  in  that  capacity  for  the 
purpose  of  reaching  the  land  as  equitable  assets.  Such  action 
would  have  differed  from  this  both  in  gravamen  and  relief": 
See  also  Stewart  v.  Thompson,  32  Id.  260.  If  a  party  has  a 
right  to  several  actions,  one  is  not  necessarily  barred  because 
the  others  are:  Lamb  v.  Clark,  5  Pick.  193, 198;  Iveyy.  Owens, 
23  Ala.  641;  Angell  on  Limitations,  6th  ed.,  sec.  72. 

Order  reversed.  

Jxrsoioirr  Lavs,  Prioritt  or:  See  Elston  ▼.  Castor,  61  Am.  Rep.  754; 
Clonts  V.  Bitch,  05  Am.  Dec.  345,  note  340,  where  other  cases  in  that  series 
are  collected. 

Nature  of  Judoment  Liens,  and  What  Affected  by:  See  Fillqf  v.  Dun- 
can, 93  Am.  Deo.  337,  note  345,  where  this  subject  is  considered  at  length. 


692  LiNDSLEY  V.  Chicago  etc.  Railway  Co.        [Minn. 

LiNDSLET  V.  Chicago,  Milwaukee,  and  St.  Paul 
Kailway  Company. 

[86  Minnesota,  539.] 

Pbbson  Tkanspobtino  Live-stock  Assumes  with  Respect  to  It  Com- 
mon-law Relation  of  a  common  carrier  with  the  incident  duties  and 
obligations,  subject,  however,  to  the  modification  that  he  is  not  an  in- 
surer, as  respects  injuries  resulting  without  his  fault  from  the  inherent 
nature  and  propensities  of  the  animals  themselves. 

BxTBDEN  OP  Proof  that  Cause  of  Death  of  Live-stock  in  Coubsb  of 
Transportation  was  within  the  exception  qualifying  his  general  liability 
is  upon  the  carrier. 

Instkuctton  to  Jury  that  Defendant  must  Prove  to  their  Satisfac- 
tion, by  a  preponderance  of  the  evidence,  that  death  of  live-stock  in 
course  of  transportation  resulted  from  some  other  cause  than  the  defend- 
ant's negligence,  means  no  more  than  that  the  defendant  should  estab- 
lish that  fa  t  by  what  the  jury  should  deem  to  be  the  weight  of  evidence. 
And  there  is  no  error  in  the  form  or  terms  of  such  instruction. 

Expert  WrrNESs  may  be  Asked  What  Course  Carrier  might  Prop- 
erly Pursue  for  Relief  of  Ltve-stook  suffering  greatly  from  heat, 
while  in  transit  in  a  railroad  car. 

Action  to  recover  the  value  of  twenty-four  hogs,  the  prop- 
erty of  the  plaintiff,  that  died  while  heing  transported  by  the 
defendant,  as  a  common  carrier,  owing  to  alleged  negligence 
on  the  part  of  the  defendant.  The  following  instructions 
asked  by  the  defendant  were  refused:  "2.  The  jury  are  in- 
structed that  the  fact  that  the  hogs  died  in  transit  raises  no 
presumption  of  negligence  on  the  part  of  the  defendant,  or  any 
of  its  employees,  and  that  the  burden  of  proof  is  on  the  plain- 
tiff to  show,  by  the  preponderance  of  the  evidence,  that  there 
was  negligence  on  the  part  of  the  defendant,  or  of  its  em- 
ployees, which  directly  caused  the  death  of  the  hogs."  "  5. 
The  jury  are  instructed  that  if,  on  the  whole  evidence,  in  your 
opinion,  it  is  left  in  doubt  what  the  cause  of  the  damage  was, 
then  your  verdict  must  be  for  the  defendant.  6.  The  jury  are 
instructed  that  if  the  evidence,  in  your  opinion,  leaves  it  in 
doubt  as  to  whether  there  was  any  negligence  on  the  part  of 
the  defendant  or  its  employees,  which  directly  caused  or  con- 
tributed to  the  death  of  the  hogs,  then  your  verdict  must  be 
for  the  defendant."  The  following  instructions  asked  by  the 
plaintiff  were  given:  "2.  In  the  transporting  of  the  hogs  in 
question  the  defendant  was  a  common  carrier,  and  as  such 
was  bound  to  use  all  care  and  precaution  for  their  safety  while 
in  transit,  so  far  as  human  vigilance  and  foresight  and  care 
would  go.     It  was  an  insurer  of  the  property,  except  in  respect 


May,  1887.]     Lindsley  v.  Chicago  etc.  Railway  Co.         693 

to  such  injuries  as  may  or  might  unavoidably  result  from  the 
essential  nature  of  the  property  itself,  the  nature  and  propen- 
sity of  the  hogs,  and  their  capacity  to  inflict  injury  upon  each 
other.  3.  In  this  case,  unless  you  find  th^t  these  hogs  died 
from  some  inherent  want  of  vitality,  or  by  reason  of  their  in- 
flicting injuries  upon  each  other,  or  by  inevitable  accident,  the 
defendant  company  is  liable;  and  if  it  would  escape  liability, 
the  burden  of  proof  is  upon  it  to  show  that  the  hogs  died  from 
some  other  cause  than  its  negligence.  In  the  absence  of  such 
proof,  the  law  presumes  negligence,  and  that  such  negligence 
caused  the  death  of  these  hogs.  In  other  words,  the  defend- 
ant, in  order  to  escape  liability  in  this  action,  must  prove  to 
your  satisfaction,  by  a  preponderance  of  the  evidence,  that  the 
death  of  the  hogs  was  the  result  of  some  other  cause  than  its 
negligence,  or  the  negligence  of  its  employees  or  trainmen." 
The  plaintiff  had  a  verdict,  and  the  defendant  appealed  from 
an  order  denying  a  new  trial.  Other  facts  are  stated  in  the 
opinion. 

H.  H.  Field,  for  the  appellant. 

T.  J.  Knox,  for  the  respondent. 

By  Court,  Dickinson,  J.  1.  We  will  first  consider  whether 
there  was  error  in  the  refusal  of  the  court  to  instruct  the  jury 
as  requested  by  the  defendant,  as  to  the  burden  of  proof,  and 
in  the  instruction  given  upon  that  subject.  In  brief,  the 
question  is  whether,  the  hogs  having  died  in  transit,  the  burden 
was  upon  the  plaintiff  to  show  that  the  death  was  caused  by 
the  defendant's  negligence,  and  not  from  disease,  or  from  what 
might  be  termed  natural  causes,  or  was  it  upon  the  defendant 
to  show  that  it  was  without  negligence,  so  that  it  must  be  in- 
ferred that  the  death  was  from  natural  causes,  for  which  the 
carrier  was  not  responsible. 

In  this  state,  and  generally  in  the  United  States,  it  has  been 
held  that  a  carrier  engaged  in  the  transportation  of  live-stock 
assumes,  with  respect  to  such  property,  the  common-law  rela- 
tion of  a  common  carrier,  with  the  incident  duties  and  obliga- 
tions, subject,  however,  to  the  modification  or  exception  that 
he  is  not  an  insurer,  as  respects  injuries  resulting  without  his 
fault,  but  from  the  inherent  nature  or  propensities  of  the  ani- 
mals themselves:  Moulton  v.  St.  Paul,  3/.,  & M.  Ry  Co.,  31  Minn. 
85;  47  Am.  Rep.  781 ;  16  N.  W.  Rep.  497.  In  general,  although 
the  rule  that  the  carrier  is  absolutely  responsible  as  an  insurer 


694  LiNDSLEY  V.  Chicago  etc.  Railway  Co.        [Minn. 

of  the  property  is  Bubject  to  some  exceptions,  as  in  cases  where 
the  injury  or  loss  is  to  be  referred  to  the  act  of  God  or  the 
violence  of  public  enemies,  yet  the  burden  of  proof,  as  respects 
the  cause  of  loss*  or  injury,  is,  even  in  such  cases,  upon 
the  carrier,  who,  to  exonerate  himself  from  liability,  must 
show  that  the  cause  of  the  loss  was  of  the  exceptional  kind 
which  the  law  recognizes  as  excusing  him:  Shriver  v.  Sioux 
City  etc.  R.  R.  Co.,  24  Minn.  506;  31  Am.  Rep.  353;  Tarhox  v. 
Eastern  Steamboat  Co.,  50  Me.  339;  Alden  v.  Pearson,  3  Gray, 
342;  Murphy  v.  Staton,  3  Munf.  239;  Forward  v.  Pittard,  1 
Term  Rep.  27,  33;  Angell  on  Carriers,  sees.  202,  472.  From 
considerations  of  public  policy  {Riley  v.  Home,  5  Bing.  217,  2 
Starkie  on  Evidence,  7th  Am.  ed.,  287),  the  mere  fact  of  loss 
being  shown,  the  law  presumes  negligence  or  misconduct  on 
the  part  of  the  carrier,  and  the  burden  of  proof  is  not  upon 
the  owner,  although  the  loss  appear  to  have  been  of  such  a 
nature  that  it  might  have  been  caused  by  the  act  of  God,  if  it 
might  as  well  have  resulted  from  the  negligence  of  the  carrier. 

Thus,  in  the  case  of  goods  shown  to  have  been  burned  while 
being  transported  on  a  railway,  the  owner  may  unquestionably 
recover  if  nothing  more  be  shown,  although,  for  aught  that 
appears,  the  fire  may  have  been  caused  by  lightning,  and  not 
from  any  human  agency.  In  principle,  this  case  is  not  differ- 
ent. To  put  the  burden  of  proof  upon  the  plaintiflF  would  be 
inconsistent  with  the  legal  presumption  of  negligence  or  mis- 
conduct which  is  everywhere  recognized,  and  which  is  in 
general  of  a  conclusive  character,  excluding  even  proof  of 
actual  carefulness,  except  as  the  cause  of  the  loss  may  be 
shown  to  have  been  within  the  legally  defined  exceptions  to 
the  rule  of  absolute  liability.  By  force  of  this  presumption, 
the  carrier  is  charged  with  responsibility,  unless  in  some  way 
it  be  shown  that  the  animals  died  from  some  cause  not  in- 
volving fault  on  the  part  of  the  carrier.  This  is  not  shown  by 
the  mere  fact  of  the  death  of  the  animals;  for,  as  in  the  case 
of  loss  by  fire,  this  may  as  well  have  resulted  from  the  mis- 
conduct of  the  carrier  as  from  the  act  of  God.  The  court  was 
right  in  ruling  that  the  burden  of  proof  was  upon  the  defend- 
ant. 

We  discover  no  error  in  the  form  or  terms  in  which  the  in- 
structions were  presented.  In  saying  to  the  jury  that  the  de- 
fendant must  prove  to  their  satisfaction  by  a  preponderance 
of  the  evidence  that  the  death  of  the  hogs  resulted  from  some 
other  cause  than  its  own  negligence,  the  court  obviously  meant 


May,  1887.]    Lindsley  v.  Chicago  etc.  Railway  Co.        695 

no  more  than  that  the  defendant  should  establish  that  fact  by 
what  the  jury  should  deem  to  be  the  weight  of  the  evidence. 
This  is  apparent  from  the  language  employed,  especially  in 
connection  with  the  instruction  given  upon  the  defendant's 
fourth  request. 

The  fifth  and  sixth  requests  of  the  defendant  were  properly 
refused.  They  were  opposed  to  the  correct  theory  upon  which 
the  case  seems  to  have  been  committed  to  the  jury  (as  is  ap- 
parent from  the  instructions  given  upon  the  defendant's  fourth 
and  the  plaintifiF's  third  requests),  that  the  burden  was  upon 
the  carrier  to  show  by  the  preponderance  of  the  evidence  that 
the  death  resulted  from  some  inherent  property  in  the  animals 
without  the  contributory  fault  of  the  carrier. 

The  instruction  given  upon  the  plaintiflf's  second  request 
was  not  unfavorable  to  the  defendant,  in  view  of  the  principle 
correctly  embodied  in  it  that  the  carrier  is  an  insurer,  except 
as  respects  injuries  resulting  from  the  nature  of  this  kind  of 
property. 

2.  The  verdict  was  justified  by  the  evidence.  Without  re- 
gard to  the  legal  presumption  arising  from  the  destruction  of 
the  property,  the  evidence  presents  a  case  from  which  the  jury 
might  find  negligence  on  the  part  of  the  carrier.  This  car- 
load of  hogs  was  wholly  in  the  care  of  the  defendant,  it  not 
being  customary  to  allow  the  shipper  to  accompany  a  single 
car-load  of  stock  to  care  for  it.  There  is  no  claim  that  the 
car  was  overloaded,  and  the  evidence  is  that  it  was  not.  Ap- 
parently the  hogs  were  in  good  condition  when  they  left  La- 
crosse, on  the  morning  of  May  23d.  At  Portage,  at  about  six 
o'clock  that  afternoon,  twenty-four  of  them,  or  more  than  one 
third  of  the  whole  car-load,  were  found  dead.  At  that  place 
(Portage)  the  hogs  then  alive  were  removed  from  the  car, 
and  no  more  deaths  occurred.  This  mortality  was  extraor- 
dinary, witnesses  for  the  defendant  of  experience  in  such 
business  never  having  known  more  than  three  or  four  deaths 
to  occur  in  a  single  car-load.  The  animals  were  not  in  need 
of  food.  The  day  was  very  hot,  and,  as  the  defendant's  evi- 
dence showed,  the  animals  were  showered  with  water  (which 
seems  to  have  been  proper  treatment)  at  three  places  in  the 
course  of  the  day,  the  last  time  at  about  three  o'clock  in  the 
afternoon.  Notwithstanding  this,  the  conductor  of  the  train 
observed  that  the  hogs  were  panting  as  though  too  warm. 
At  midday,  at  a  point  seventy-eight  miles  from  Portage,  he 
showered  them  because  he  sraclled  them  in  walking  over  the 


696  LiNDSLEY  V.  Chicago  etc.  Railway  Co.        [Minn. 

train.  He  observed  two  dead  hogs  at  a  point  forty-three  miles 
from  Portage,  and  at  a  point  twenty-five  miles  from  Portage 
that  seven  or  eight  were  dead,  and  the  remainder  in  bad  con- 
dition. Other  stations  were  passed  before  coming  to  Portage, 
where,  as  the  evidence  tended  to  show,  the  stock  might  have 
been  left  and  unshipped.  From  this  and  other  evidence  tend- 
ing to  the  same  conclusion,  the  jury  might  well  conclude  that 
there  was  negligence  in  not  setting  the  car  off  from  the  train, 
and  unloading  the  stock,  as  was  done  at  Portage,  before  the 
final  destination  was  reached. 

3.  Error  is  assigned  as  to  the  overruling  of  an  objection  to 
a  question  put  to  the  plaintiff  in  rebuttal  as  to  what  would 
have  been  the  proper  thing  for  the  conductor  to  have  done  in 
caring  for  the  hogs  under  the  circumstances  testified  to  by  the 
conductor  (defendant's  witness).  The  plaintiff  was  qualified 
to  testify  if  such  evidence  was  admissible.  It  cannot  be  as- 
sumed that  all  the  jurors  had  had  such  experience  as  would 
have  enabled  them  to  judge  as  well  as  the  witness  as  to  what 
course  should  have  been  pursued.  The  witness  might  have  an- 
swered that  they  should  have  been  showered  oftener  or  longer, 
or  he  might  have  indicated  some  other  course  as  proper,  con- 
cerning which  the  jury  may  have  been  uninformed.  In  fact, 
the  answer  suggested  a  course  which  probably  would  have 
been  in  accordance  with  the  ordinary  judgment  of  men, — 
that  is,  setting  the  car  off  at  a  station,  and  unloading  the 
animals.  The  question  was  unobjectionable,  and  if  this  an- 
swer was  deemed  to  state  what  was  within  the  province  and 
general  information  of  the  jury,  there  should  have  been  a 
motion  to  strike  out. 

Order  aflBrmed. 


Burden  ov  Fbovino  Absence  07  Neoligence  is  on  Common  Cakeiek: 
See  Ryan  v.  M.,  K.,  &  T.  Ry  Co.,  57  Am.  Rep.  589;  Cldeago  etc.  R.  R.  Co.  v. 
M0S8,  45  Id.  428;  Shriver  v.  Sioux  City  etc.  R.  R.  Co.,  31  Id.  353;  Shenk  r. 
Philadelphia  S.  P.  Co.,  100  Am.  Dec.  541;  Chapman  v.  New  Orleans  etc  R.  R. 
Co.,  99  Id.  722,  note  725,  collecting  cases  in  that  series. 

Duty  op  Gabbier  of  Live-stock:  See  East  Tennessee  V.  <tr  O.  R.  R.  Co. 
V.  Johnston,  61  Am.  Rep.  489;  Grey  v.  Mobile  T.  Co.,  28  Id.  729. 

LiABiLrrT  OF  Carriers  of  Live-stock:  See  Moulton  v.  St.  Paul  etc.  R'y 
Co.,  47  Am.  Rep.  781;  Kansas  City  etc.  R.  R.  Co.  v.  Simpson,  46  Id.  104;  Georgia 
R.  R.  V.  Beatie,  42  Id.  75;  Oewgia  R.  R.  v.  Speers,  42  Id.  81;  Bamberg  v. 
South  Carolina  R.  R.  Co.,  30  Id.  13;  Mynard  v.  Syracuse  etc.  R.  R.  Co.,  27 
Id.  28,  and  note  collecting  prior  cases  in  that  series;  PUre  v.  Offuit,  99  Am. 
Dec.  749,  note  751,  where  other  cases  in  that  series  are  collected. 


May,  1887.]  Pratt  v.  Duncan.  697 

Pratt  v.  Duncan. 

136  Minnesota,  545.] 
Minnesota  Statute  does  not  Authorize  Mechanic's  Lien  foe  Fillino 
IN  AND  Grading   Earth  about  buildings  already  erected,  where  the 
work  does  not  enter  into  or  contribute  to  the  erection,  alteration,  or 
repair  of  any  building  or  structure  upon  the  land. 

Action  to  determine  the  defendant's  claim  to  a  lien  on 
premises  belonging  to  the  plaintiffs.  The  plaintiffs  had  judg- 
ment, and  the  defendant  appealed. 

E.  A.  Campbell  and  J.  E.  Waters^  for  the  appellant. 
Merrick,  Pavenport,  and  Thian,  for  the  respondents. 

By  Court,  Dickinson,  J.  The  defendant's  claim  of  a  lien 
cannot  be  sustained.  The  right  of  lien  is  asserted  for  earth 
furnished  and  labor  done  in  banking  up  the  basement  and 
foundation  walls  of  buildings  upon  the  premises  sought  to  be 
charged,  and  in  filling  and  grading  the  grounds  for  the  pur- 
pose of  sodding.  This  is  not  within  the  statute  which  au- 
thorizes a  lien  for  labor  performed  or  material  furnished  for 
the  "  erection,  alteration,  or  repair  of  any  house,  mill,  manu- 
factory, or  other  building,  or  appurtenances  ":  Gen.  Stats.  1878, 
c.  90,  sec.  2.  Section  6  of  this  chapter,  after  prescribing  the 
procedure  by  which  a  lien  may  be  perfected,  declares  that  the 
same  shall  operate  as  a  lien  "upon  the  several  descriptions  of 
structures  and  buildings,  and  the  lots  of  ground  on  which 
they  stand,  in  the  second  section  of  this  chapter  named." 
The  statute  is  not  to  be  construed  as  authorizing  a  lien  for 
improvements  or  operations  upon  the  soil  merely,  which  do 
not  enter  into  or  contribute  to  the  erection,  alteration,  or  repair 
of  any  building  or  structure  upon  the  land,  and  which  are 
wholly  unconnected  with  the  erection  of  or  work  upon  such 
artificial  structures:  Smith  v.  Kennedy,  89  111.  485.  The  labor 
and  material  for  which  a  lien  is  here  claimed  bore  no  disclosed 
relation  to  the  construction,  alteration,  or  repair  of  any  struc- 
ture upon  the  land,  and  the  right  to  a  lien  was  properly  denied. 

Judgment  affirmed.  

Mechanic's  Lien,  for  What  Given:  See  Smith  Bridge  Co.  v.  Bowman, 
62  Am.  Rep.  67;  Broum  v.  Wyman,  41  Id.  117;  NeiLwi  v.  lowaB.  R.  R.  Co., 
33  Id.  124;  Stryher  v.  Cauidy,  32  I<1.  202,  note  2G4;  Omham  v.  Mount  Ster- 
ling Coalroad  Co.,  29  Id.  412;  Drew  v.  Mcuon,  25  Id.  288;  PemisylvaiuaA  D. 
R.  R.  Co.  T.  Let^ffer,  24  Id.  189;  OaV>reath  v.  Davidson,  99  Am.  Dec.  2.33; 
Hill  V.  Newman,  80  Id.  473;  Derrickaon  v.  Edwards,  80  Id.  220;  Chapin  v. 
Perase  A  B.  P.  Works,  79  Id.  263,  note  268;  Lacrosse  <t-  M.  R.  R.  Co.  t. 
Vanderpool,  78  Id.  691,  note  694,  where  thin  subject  is  fully  considered. 


698  Andebson  v.  Peterson.  [Minn. 

Anderson  v.  Peterson. 

[36  MiMMBSOTA,  547.1 

United  States  Patent  Issued  to  Minor  Heirs  of  a  father  who  had  made 
a  homestead  entry  upon  land  in  Minnesota,  and  died  leaving  children 
under  twenty-one  years  of  age,  passes  the  title  to  all  of  said  children, 
although  at  the  time  of  his  death  one  of  them,  a  daughter,  was  over  the 
age  of  eighteen  years,  and  therefore  not  a  minor  under  the  laws  of  Min- 
nesota. 

Action  for  partition.  The  plaintifiFs  claimed  two  thirds  of 
the  premises  under  deeds  from  Hannah  M.  and  Hamilton 
McCollom,  and  the  defendant  claimed  one  half  thereof  under 
a  deed  from  Henry  McCollom.  The  court  below  found  that 
the  plaintifiFs  were  entitled  to  two  thirds  and  the  defendant  to 
one  third,  and  entered  judgment  accordingly.  The  defendant 
appealed. 

Daniel  RoTirer,  for  the  appellant. 

L.  M.  Lange,  for  the  respondents. 

By  Court,  Gilfillan,  C.  J.  August  18,  1871,  Hamilton 
McCollom  made  a  homestead  entry,  under  the  law  of  the 
United  States,  on  land  situated  in  this  state.  He  died  March 
10, 1876,  leaving  no  widow,  and  leaving  children  under  twenty- 
one  years  of  age, — Hannah  M.,  aged  nineteen  years  and  nine 
months;  Hamilton,  aged  eighteen  years;  and  Henry,  aged  four- 
teen years. 

August  23, 1876,  the  administrator  of  the  deceased  made  final 
proof  upon  the  entry,  and  the  usual  final  receiver's  certificate 
was  thereupon  issued.  At  the  time  of  making  final  proof,  he 
filed  in  the  land-ofl5ce  an  affidavit  stating  that  McCollom  left 
no  widow,  and  left  two  children,  minors  and  heirs  at  law. 
The  final  certificate  stated  that  the  administrator  had  made 
full  payment  for  the  minor  heirs  of  Hamilton  McCollom,  and 
that,  on  presentation  of  the  certificate  to  the  commissioner  of 
the  general  land-oflBce,  "the  said  minor  heirs  of  Hamilton 
McCollom,  deceased,  shall  be  entitled  to  a  patent."  A  patent 
issued  December  1,  1876,  reciting  that  "there  has  been  de- 
posited in  the  general  land-oflfice  of  the  United  States  a 
certificate  of  the  register  of  the  land-ofiBce  at  Worthington, 
Minnesota,  whereby  it  appears  that  the  claim  of  the  minor 
heirs  of  Hamilton  McCollom,  deceased,  by  Lucian  B.  Bennett, 
administrator,  has  been  established  and  duly  consummated 
in  accordance  with  law,"  and  proceeds:  "That  there  is  there- 


May,  1887.]  Anderson  v.  Peterson.  699 

fore  granted  by  the  United  States  unto  the  said  minor  heirs 
of  Hamilton  McCoUom,  deceased,  the  tract  of  land  above 
described." 

The  question  raised  on  this  patent  is,  Did  the  above-named 
three  children  take  title,  or  did  only  Hamilton  and  Henry 
take,  excluding  Hannah?  Who  were  the  minor  heirs,  within 
the  meaning  of  the  patent?  The  defendant  contends  that 
this  must  be  determined  according  to  the  law  of  this  state  de- 
fining "  minority,"  and  that,  as  by  that  law,  Hannah  was  no 
longer  a  minor,  she  being  then  more  than  eighteen  years  of  age, 
she  does  not  come  within  the  description  of  the  grantees  in  the 
patent.  The  land-office  did  not  assume  to  determine  what 
particular  individuals  were  entitled  to  the  rights  secured  to 
the  deceased,  and  so  did  not  name  any  particular  persons  as 
grantees  in  the  patent,  but  designated  the  grantees  by  a  de- 
scription. Was  the  law  of  Minnesota  or  the  law  of  the  United 
States  in  mind  when  that  description  was  inserted?  Un- 
doubtedly the  latter;  for  the  officers  of  the  department  were 
acting  under  it,  and  must  be  supposed  to  have  intended  to 
carry  out  its  provisions.  Sections  2289-2291  of  the  Revised 
Statutes  of  the  United  States  give  the  right  to  enter  a  home- 
stead, and  prescribe  how  it  shall  be  secured,  and  when  the  right 
shall  become  perfect.  Section  2292  has  this  provision:  *'In 
case  of  the  death  of  both  father  and  mother,  leaving  an  infant 
child  or  children  under  twenty-one  years  of  age,  the  right  and 
fee  shall  inure  to  the  benefit  of  such  infant  child  or  children." 

At  the  common  law,  children  of  both  sexes  under  twenty- 
one  were  infants  or  minors,  and  they  were  so  by  the  law  of 
Minnesota  when  section  2292  was  passed.  As  there  were  per- 
sons exclusively  entitled  under  section  2292,  it  must  be  pre- 
sumed that,  in  issuing  the  patent,  the  land-office  intended  to 
grant  to  such  persons.  It  is  true,  the  description  selected  to 
designate  them  might  be  regarded  as  inaccurate,  but,  reading 
the  patent  with  the  section,  there  can  be  no  doubt  as  to  what 
class  of  persons  was  intended;  that  the  persons  described  in 
the  section,  to  wit,  the  children  under  twenty-one  years  of  age, 
were  intended. 

Section  2292  contains  also  this  clause,  immediately  follow- 
ing what  we  have  quoted:  "And  the  executor,  administrator, 
or  guardian  may,  at  any  time  within  two  years  after  the  death 
of  the  surviving  parent,  and  in  accordance  with  the  laws  of 
the  state  in  which  such  children  for  the  time  being  have  their 
domicile,  sell  the  land  for  the  benefit  of  such  infants,  but  for 


700  Anderson  v.  Peterson.  [Minn. 

no  other  purpose;  and  the  purchaser  shall  acquire  the  abso* 
lute  title  by  the  purchase,  and  be  entitled  to  a  patent  from  the 
United  States  on  the  payment  of  the  oflBce  fees  and  sum  of 
money  above  specified." 

It  is  suggested  upon  this,  that  the  only  benefit  the  in- 
fant children  can  get  under  the  section  is  through  a  sale  by 
the  executor,  administrator,  or  guardian.  The  clause,  how- 
ever, does  not  limit  the  preceding  one.  It  is  an  addition  to  it. 
It  is  an  enabling  clause  by  which  the  executor,  administrator, 
or  guardian  may  (as  against  the  United  States)  sell  the  chil- 
dren's right,  as,  according  to  the  law  of  their  domicile,  he  may 
sell  other  of  their  property.  The  right  inures  to  the  children 
at  once  upon  the  death  of  the  parents,  but  it  may  be  divested 
in  the  manner  stated.  If  there  is  no  such  sale,  their  right 
becomes  perfect,  and  they  will  become  entitled  to  a  patent. 

Judgment  affirmed. 

DxED  TO  "Hkttm"  VEsra  Title  in  Whom:  See  Fountain  Co.  0.  A  M. 
Co,  T.  Beddehiimer,  62  Am.  Rep.  645. 


CASES 


d  THB 


SUPREME    COURT 


OF 


MISSOURI. 


Evans  v.  Eobbbrson. 

\92  MISSOUBI,  192.] 

SuJEHUv's  Advkbtisshent  fob  Salb  of  Lands  need  only  state  the  day  on 
which  the  sale  will  take  place;  it  need  not  state  the  hoars  of  that  day 
between  which  it  will  be  sold,  as  the  law  fixes  that. 

Peisumption  will  be  Indulged  that  Sheeiff's  Notice  of  Sale  of  land 
'nnder  execution  was  posted  at  the  front  door  of  the  conrt-hoase,  as  re- 
quired by  law,  when  there  is  nothing  to  negative  such  presumption. 

Every  Reasonable  Fresuhption  will  be  Indulged  in  favor  of  sustain- 
ing  the  ministerial  acts  of  officers  making  judicial  sales. 

Failure  of  Sheriff  to  Post  Notice  of  Sale  of  land  under  execution  in 
front  of  the  court-house,  as  required  by  law,  is  but  an  irregularity,  which 
cannot  affect  the  title  of  an  innocent  purchaser  without  notice,  in  a  col- 
lateral proceeding,  though  it  might  be  ground  for  setting  aside  the  sale 
in  a  direct  proceeding  between  the  interested  parties. 

Sheriff's  Deed  Regular  in  Form  and  properly  acknowledged  is  admissi- 
ble in  evidence  in  support  of  the  recitals  therein  contained. 

JuiMKENT,  Sale,  and  Deed  of  Land  fob  Taxes,  under  the  Missouri  stat- 
utes of  1877,  page  386,  section  6,  in  order  to  bind  the  interests  of  the 
owner,  must  show  that  he  was  made  a  party,  if  known;  and  if  not  known 
and  not  made  a  party,  then  his  interest  can  only  be  affected  by  making 
the  party  appearing  by  the  record  to  be  the  owner  a  party  to  the  suit. 

Patterson,  for  the  appellant. 

Travers,  for  the  respondent. 

By  Court,  Brace,  J.  This  was  an  action  in  ejectment  for 
the  west  one  half  of  the  northwest  quarter  of  section  4,  town- 
ship 30,  range  22,  in  Greene  County,  Missouri.  The  petition, 
in  usual  form,  was  filed  April  14,  1883.    The  answer  of  the 

70i 


702  Evans  v.  Robberson.  [Missouri, 

defendant  admitted  possession,  and  denied  the  other  allega- 
tions of  the  petition.  The  case  was  tried  by  the  court  without 
a  jury;  verdict  and  judgment  for  plaintiflf.  Both  parties 
claim  title  under  one  Theophilus  Leathers,  who,  it  was  ad- 
mitted, was  the  owner  of  the  land  at  the  time  of  his  death  in 
1857,  and  who,  by  will,  devised  said  land  to  his  wife,  Elizabeth 
(who  died  January  24, 1883),  during  her  life;  remainder  in  fee 
to  his  sons,  Edwin  R.  and  John  W.  Leathers.  PlaintiflF  claims 
to  have  acquired  all  the  undivided  interest  of  the  said  Ed- 
win R.  in  the  said  northwest  quarter  of  the  southwest  quarter, 
by  virtue  of  a  sheriff's  deed  dated  June  5,  1873,  properly  ac- 
knowledged and  recorded  March  3,  1883,  and  the  undivided 
interest  of  John  W.  in  the  west  one  half  of  said  northwest 
quarter  of  the  southwest  quarter  of  the  land  sued  for,  by  a 
verbal  partition,  between  him  and  the  said  John,  of  said 
forty-acre  tract;  and  on  the  trial  offered  said  sheriff's  deed 
in  evidence,  to  which  defendant  objected,  but  which  was  ad- 
mitted in  evidence  over  his  objection.  The  deed  contained 
the  following  recitals:  — 

"  Whereas,  on  the  ninth  day  of  May,  1872,  judgment  was 
rendered  in  the  circuit  court  of  Greene  County  in  favor  of 
Elisha  Headlee,  public  administrator  of  Greene  County,  Mis- 
souri, having  in  charge  the  estate  of  Nathan  Boone,  deceased, 
and  against  E.  R.  Leathers,  John  Evans,  and  D.  M.  Evans,  for 
the  sum  of  $200.29  for  debt,  and  $21.25  for  damages,  and  also 
for  costs  in  said  suit,  upon  which  judgment  an  execution  was 
issued  from  the  clerk's  office  of  said  court  in  favor  of  the 
eaid  Elisha  Headlee,  public  administrator  as  aforesaid,  and 
having  in  charge  the  estate  of  said  Nathan  Boone,  deceased, 
and  against  the  said  E.  R.  Leathers,  John  Evans,  and 
D.  M.  Evans,  dated  the  11th  of  January,  1873,  directed  to  the 
sheriff  of  Greene  County,  and  the  same  was  to  me  on  said 
day  delivered;  by  virtue  of  which  execution  I  did,  on  the 
eleventh  day  of  January,  1873,  levy  upon  and  seize  all  the 
right,  title,  interest,  and  estate  of  the  said  E.  R.  Leathers, 
John  Evans,  and  D.  M.  Evans,  of,  in,  and  to  the  following  de- 
scribed real  estate,  situate  in  said  Greene  County,  to  wit,  the 
northwest  quarter  of  the  southwest  quarter  of  section  four  (4), 
township  thirty  (30),  range  twenty-two  (22);  and  whereas,  in 
pursuance  of  law,  and  by  virtue  of  authority  in  me  vested  by 
law  as  sheriff  of  said  county,  I  caused  said  real  estate  to  be 
advertised  for  at  least  twenty  (20)  days  before  the  twenty- 
second  day  of  February,  1873,  giving  the  time  and  place  of 


April,  1887.]  Evans  v.  Robberson.  703 

sale  and  of  the  real  estate  to  be  sold,  and  where  situate,  as  the 
law  directs,  by  publication  in  the  Springfield  Leader,  a  news- 
paper printed  and  published  in  my  said  county  of  Greene, 
that  I  would,  on  the  twenty-second  day  of  February,  1873, 
that  being  the  sixth  day  of  the  February  term  of  said  court, 
offer  the  above-described  real  estate  for  sale  at  public  auction, 
at  the  court-house  door  in  my  said  county,  while  said  circuit 
court  was  in  session,  between  the  'lawful  hours'  of  said  day,  for 
cash  in  hand;  and  whereas,  by  an  act  of  the  legislature,  ap- 
proved January  18,  1873,  the  time  of  holding  the  said  Feb- 
ruary term  of  said  circuit  court  of  Greene  County,  for  the  year 
1873,  was  changed  from  the  third  Monday  in  Februar}'  to  the 
first  Monday  in  May,  1873;  and  whereas,  I  did,  on  the  first  day 
of  the  said  May  term,  1873,  of  said  circuit  court,  that  being 
the  first  term  of  said  court  held  in  pursuance  of  the  said 
change  of  time  of  holding  the  same,  made  by  the  act  of  the 
legislature  aforesaid,  put  up  a  written  notice  that  I  would,  by 
virtue  of  law  and  the  said  judgment  and  execution,  on  Satur- 
day, the  10th  of  May,  1873,  that  being  the  sixth  day  of  the 
said  May  term,  and  the  said  day  of  the  term  that  said  sale 
was  advertised  to  take  place  at  said  previous  February  term, 
sell  said  real  estate  above  described,  and  in  said  notice  I  speci- 
fied the  names  of  the  parties  to  said  execution,  the  list  of  the 
property  sold,  and  stated  the  fact  that  said  property  had  been 
previously  advertised,  giving  the  name  of  the  paper  and  its 
date;  and  whereas,  by  virtue  of  authority  in  me  vested,  I  did, 
on  the  tenth  day  of  May,  1873,  whilst  the  circuit  court  was  in 
session,  and  between  the  hours  of  nine  o'clock  in  the  forenoon 
and  five  o'clock  in  the  afternoon  of  that  day,  expose  to  sale 
said  real  estate  at  public  vendue  to  the  highest  bidder,  at  the 
court-house  door  of  my  said  county,  and  at  said  sale  D.  M. 
.Evans,  being  the  highest  and  best  bidder  for  said  real  estate," 
etc. 

It  is  contended  for  the  appellant  that  the  recital  in  said 
deed,  that  the  real  estate  was  advertised  to  be  sold  between 
the  '*  lawful  hours  "  of  the  day  upon  which  it  was  to  be  sold, 
renders  it  invalid.  There  is  nothing  in  this  contention.  It 
was  the  duty  of  the  sheriflf  to  designate  the  day  upon  which 
the  land  would  be  sold  in  his  advertisement;  the  law  fixed 
the  hours  of  that  day  between  which  it  must  be  sold;  and 
whilst  it  was  not  necessary  that  the  hours  should  be  stated  in 
the  advertisement,  it  was  the  duty  of  the  Bherifi*  to  sell  be- 
tween those  hours:  1  W.  S.,  p.  610,  sec.  45;  and  the  recital  in 


7M  Evans  v.  Robberson.  [Missouri, 

the  deed  shows  that  the  sheriff  did  sell  the  land  between  the 
hours  of  9  A.  M.  and  5  p.  m.,  as  the  law  required. 

It  is  next  objected  to  said  deed  that  it  does  not  appear  that 
the  notice  therein  recited  was  put  up  "  at  the  front  door  of 
the  court-house."  The  law  governing  the  case  is  as  follows: 
"  In  all  cases  where  the  times  of  holding  the  terms  of  the 
several  courts  of  this  state  shall  be  changed  by  the  legislature, 
all  sales  of  property  which  would  have  been  made  at  the  terms 
previously  established  by  law  shall  be  made  at  the  first  term 
of  the  court  to  be  held  in  pursuance  of  such  change,  and 
where  such  sales  have  been  advertised  to  be  made  on  any 
day  of  such  previously  established  term,  to  satisfy  any  execu- 
tion returnable  thereto,  ....  the  sale  shall  be  made  on  the 
same  day  of  the  term  held  in  pursuance  of  the  change  afore- 
said, and  no  second  advertisement  of  such  sale  shall  be  neces- 
sary, but  it  shall  be  the  duty  of  the  sheriff  having  in  charge 
the  execution  aforesaid  to  put  up  at  the  front  door  of  the 
court-house  of  the  proper  county,  on  or  before  the  first  day  of 
the  changed  term,  a  list  of  the  property  to  be  sold,  specifying 
the  names  of  the  parties,  the  property  to  be  sold,  and  the  day 
of  sale,  and  stating  the  fact  that  said  property  has  been 
previously  advertised,  giving  the  name  of  the  paper  and  its 
date":  Gen.  Stats.  1865,  p.  541,  sec.  44. 

It  will  be  observed  that  the  recitals  in  the  deed  show  a 
compliance  with  the  requirements  of  the  law  in  every  par- 
ticular, except  in  that  it  does  not  thereby  afiirmatively 
appear  that  the  notice  was  put  up  "at  the  front  door  of 
the  court-house."  There  is  nothing  in  the  deed  that  tends 
to  negative  or  is  inconsistent  with  the  idea  that  in  fact 
the  notice  was  put  up  at  the  front  door  of  the  court-house, 
and  it  is  to  be  presumed  that  the  oflBcer  in  this  respect 
discharged  his  duty.  It  is  the  policy  of  the  law  that  every 
reasonable  presumption  should  be  indulged  in  favor  of  sus- 
taining the  ministerial  acts  of  ofl&cers  making  judicial  sales; 
besides,  the  advertisement  designated  the  day  of  the  Febru- 
ary term  on  which  the  land  would  be  sold;  the  law  required 
that  it  should  be  sold  on  the  same  day  of  the  next  changed 
term.  The  act  making  the  change  fixed  the  day  on  which 
such  term  should  commence,  and  everybody  was  informed  by 
the  advertisement  and  the  law  in  such  cases  of  the  day  on 
which  alone  the  land  could  and  would  be  sold  at  such  changed 
term,  and  it  was  accordingly  so  sold;  and  even  if  the  sheriff 
should  have  failed  to  put  up  the  required  notice  at  the  front 


April,  1887.]  Evans  v.  Robberson.  705 

door  of  the  court-house,  his  failure  to  do  bo,  at  best,  would 
have  been  an  irregularity  which,  although  it  might  have  af- 
forded grounds  for  setting  aside  the  sale  in  a  direct  proceeding 
for  that  purpose  by  the  parties  interested,  could  not  afifect  the 
title  of  an  innocent  purchaser  without  notice  in  a  collateral 
proceeding:  Rorer  on  Judicial  Sales,  794;  Draper  v.  BrysoUf 
17  Mo.  71;  57  Am.  Dec.  257;  Wilhite  v.  Wilhite,  53  Mo.  71; 
Buchanan  v.  Tracy,  45  Id.  437. 

There  was  no  error  in  admitting  said  sheriflF's  deed  in  evi- 
dence; its  legal  effect  was  to  convey  to  plaintiflf  the  undivided 
interest  of  Edwin  R.  Leathers  in  the  northwest  quarter  of  the 
southwest  quarter  of  said  section,  and  he  thereby  became  a 
tenant  in  common  in  fee  with  John  W.  Leathers  of  said  tract; 
and  by  virtue  of  the  partition  between  him  and  the  said  John 
W.,  became  the  sole  owner  of  the  west  half  of  said  north- 
west quarter  of  the  southwest  quarter  of  section  4,  the  land 
sued  for,  and  entitled  to  recover  the  same  in  this  action,  un- 
less the  defendant  acquired  plaintiff's  title  thereto  by  virtue 
of  the  tax  deed  by  him  offered  in  evidence. 

The  tax  deed  under  which  defendant  claims  was  executed  by 
the  sheriff  of  Greene  County,  dated  the  fourteenth  day  of  Novem- 
ber, 1883,  properly  acknowledged,  and  is  based  on  a  judgment 
rendered  on  the  twenty-fourth  day  of  December,  1879,  in  the 
circuit  court  of  Greene  County,  in  favor  of  the  state  of  Missouri 
at  the  relation  of  the  collector  of  said  county  against  Elizabeth 
Leathers,  in  an  action  to  enforce  the  state's  lien  for  delinquent 
taxes  for  the  year  1877.  The  law  in  force  at  the  time  the  suit 
by  the  collector  was  instituted,  which  resulted  in  the  judgment 
against  Elizabeth  Leathers,  required  that  "  all  actions  com- 
menced under  its  provisions  shall  be  prosecuted  in  the  name 
of  the  state  of  Missouri  at  the  relation  and  to  the  use  of  the 
collector  and  against  the  owner  of  the  property,  ....  and  all 
notices  and  process  in  suits  under  this  act  shall  be  sued  out 
and  served  in  the  same  manner  as  in  civil  actions  in  circuit 
courts;  and  in  case  of  suits  against  non-resident,  unknown 
parties,  or  other  owners,  on  whom  service  cannot  be  had  by 
ordinary  summons,  the  proceedings  shall  be  the  same  as  now 
provided  by  law  in  civil  actions  affecting  real  or  personal 
property."  In  all  suits  under  this  act  the  general  laws  of  the 
state  as  to  practice  and  proceedings  in  civil  cases  shall  apply, 
etc.:  Laws  of  1877,  p.  386,  sec.  6.  In  order  to  bind  the  inter- 
est of  the  owner  of  land  by  a  judgment  rendered  in  an  action 

of  this  character,  it  is  necessary  that  he  should  be  made  a 
Am.  St.  Bip.,  Vol.  I.— 45 


706  McGee  v.  Missouri  Pacific  R'y  Co.     [Missouri, 

party  to  the  proceeding,  if  known;  and  if  not  known  and  not 
made  a  party,  then  his  interest  in  the  land  can  only  be  afifected 
by  making  the  party  appearing  by  the  record  to  be  the  owner 
a  party:  Vance  v.  Corrigan,  78  Mo.  94;  State  ex  rel.  Hunt  v. 
Sack,  79  Id.  661;  Gitchell  v.  Kreidler,  84  Id.  473.  In  this  case 
neither  the  plaintiflf,  who  was  at  the  time  the  owner  in  fee  of 
the  undivided  half  (by  the  unrecorded  sheriflf's  deed  afore- 
said) of  the  land  sued  for,  nor  Edwin  R.  or  John  W.  Leathers, 
who  appeared  of  record  to  be  the  owners  in  fee  of  said  land, 
and  whose  title  the  plaintiflf  has  acquired,  were  made  parties 
to  the  suit,  and  the  judgment  therein,  and  the  sale  and  tax 
deed  made  in  pursuance  thereof,  did  not  have  the  eflfect  to 
pass  such  title  to  the  defendant. 

The  instructions  given  for  plaintiflf  contained  correct  decla- 
rations of  the  law  applicable  to  the  case,  and  there  was  no 
error  in  refusing  those  asked  for  the  defendant.  The  judg- 
ment of  the  circuit  court  is  aflirmed. 

Notice  or  Execution  Sale,  whether  most  state  hoar  at  which  sale  will 
take  place:  Trustees  v.  Snell,  68  Am.  Dec.  586,  and  note;  note  to  Hoffman  v. 
Anthony,  75  Id.  707. 

Regularitt  ov  Sheriff's  Sale  I3  Peesuked:  Childs  v.  McChesney,  89  Am. 
Dec.  545,  and  note  550.  The  same  rule  applies  to  all  judicial  sales:  Thomaa 
V.  Malcom,  99  Id.  459,  and  note  461. 

Irkeoxtlarity  and  Notice  of  Sale  bt  Sheriff  does  not  vitiate  the  sale 
as  to  a  bona  Jide  purchaser:  Minor  y.  President  etc.  ofNatcluz,  43  Am.  Dec. 
488;  Hotoard  v.  North,  51  Id.  769. 

Sheriff's  Deed  as  Evidence:  Hardin  v.  Cheek,  64  Am.  De&  600,  and 
note  602. 


McGeb  V,  Missouri  Pacific  Eailway  Company. 

[92  MissouBi,  208.1 

Passenger  Riding  on  Freight  Train,  by  direction  and  permission  of  the 
conductor,  and  without  notice  that  his  so  riding  is  against  the  rules  of 
the  company,  is  entitled  to  the  same  rights  as  if  he  were  riding  on  a 
passenger  train. 

If  Passengers  are  Habitxjally  Carried  on  Railway  Company's  Freight 
Trains,  one  who  is  received  as  a  passenger  on  such  train  is  entitled  to 
the  same  degree  of  care  as  passengers  on  regular  trains,  except  that  in 
taking  the  freight  train,  accepting  and  traveling  upon  it,  he  acquiesces 
in  the  usual  incidents  and  conduct  of  such  train,  managed  by  prudent 
and  competent  men. 

Ween  in  Action  against  Railroad  Company  for  injuries  received  by  one 
in  alighting  from  a  freight  train,  on  which  he  was  regularly  received 
and  traveling  as  a  passenger,  it  appears  that  the  train  was  not  stopped 


April,  1887. J    McGee  v.  Missouri  Pacific  R'y  Co.  707 

at  the  usual  place,  where  it  was  safe  for  passengers  to  alight,  but  at  an 
unusual  place,  where  it  was  unsafe  and  dangerous,  and  where  the  regu- 
lar station  was  announced,  thereby  inviting  the  party  injured,  nothing 
to  the  contrary  appearing,  to  get  off  when  and  where  it  stopped,  and 
the  night  was  very  dark,  and  passengers  in  the  caboose  could  not,  for 
that  reason,  see  the  danger,  and  the  conductor,  on  leaving  the  caboose 
with  the  light,  could  or  might  have  seen  it,  his  failure  to  warn  and  in- 
form the  passengers  of  the  danger  was  gross  negligence,  for  which  the 
company  is  liable. 

Slowing  up  of  Freight  Train  carrying  passengers,  as  it  approached  a 
regular  station,  the  sounding  of  the  whistle,  the  announcement  by  the 
brakeman  of  the  station,  stopping  the  train,  the  act  of  the  conductor 
and  brakeman  leaving  the  caboose  with  the  light,  and  the  detachment  of 
the  engine  to  take  water,  can  be  construed  only  as  a  direction  to  the 
passengers  to  alight,  then  and  there,  and  they,  in  absence  of  proof  to 
the  contrary,  have  the  right  to  conclude  that  it  is  a  safe  place  to  alight, 
and  if  one  receives  injury  in  so  doing,  because  the  place  is  dangerous, 
the  company  is  liable. 

In  Action  against  Railroad  Compant  for  injury  received  while  traveling 
as  a  passenger  on  a  freight  train,  evidence  is  admissible  to  prove  that  it 
was  the  custom  and  usage  of  the  company  to  carry  passengers  on  their 
freight  trains. 

Evidence  I3  Admissible  to  Prove  that  the  station  announced  ia  the  stop- 
ping-place for  freight  trains,  in  an  action  against  a  railroad  company  for 
injury  received  while  traveling  as  a  passenger  on  such  train. 

Adams  and  Bowles,  and  Portis,  for  the  appellant. 

Rodes  and  Waller,  for  the  respondent. 

By  Court,  Norton,  C.  J.  This  is  an  action  to  recover  dam- 
ages for  injuries  sustained  by  plaintifif,  a  passenger  on  one  of 
defendant's  freight  trains,  in  consequence  of  defendant's  negli- 
gence; and  the  case  is  before  us  on  defendant's  appeal  from  a 
judgment  obtained  by  plaintiff  on  the  trial,  and  we  are  asked 
to  reverse  the  judgment  because  of  alleged  error  in  the  circuit 
court  in  refusing  to  give  an  instruction  for  defendant  in  the 
nature  of  a  demurrer  to  the  evidence,  and  in  giving  improper 
instructions  for  plaintiff. 

The  evidence  on  the  part  of  the  plaintifif  tends  to  establish 
the  following  facts,  viz.:  That  plaintifif  purchased  from  de- 
fendant's ticket-agent  at  Paris,  Missouri,  a  round-trip  ticket 
for  himself  and  wife,  from  Paris  to  Moberly,  and  return;  that, 
having  gone  to  Moberly,  and  wishing  to  return  to  Paris,  he 
was  directed  by  defendant's  ticket-agent  at  Moberly,  with  the 
acquiescence  of  the  conductor,  to  take  passage  on  a  freight  train 
standing  on  defendant's  track  some  distance  from  the  depot; 
that  the  caboose  having  been  pointed  out,  plaintifif  and  hia 
wife,  a  Miss  Carrer,  and  one  Mason,  entered  the  caboose  at- 


708  McGee  v.  Missouri  Pacific  R'y  Co.    [Missouri, 

tached  to  said  train;  that  the  conductor  of  said  train  took  up 
the  tickets  from  plaintiff  for  himself  and  wife,  and  collected 
from  him  one  fare  in  cash  for  Miss  Carrerj  that  it  was  dark 
when  the  train  left  Moberly,  and  very  dark  when  the  train 
arrived  at  Paris,  about  9:30  o'clock  at  night, — so  much  so,  ac- 
cording to  the  evidence  of  one  of  the  witnesses,  that  you  could 
not  see  your  hand  before  you;  that  the  train  on  approaching 
Paris  was  slowed  up,  and  the  whistle  sounded;  that  the  con- 
ductor and  hind  brakeman  came  down  from  the  lookout  on 
the  caboose,  and  the  brakeman,  in  the  hearing  of  all  the  pas- 
sengers, announced  Paris,  and  with  the  conductor  went  out 
of  the  caboose,  taking  the  light  with  them,  the  train  in  the 
mean  time  coming  to  a  stop,  and  the  conductor  and  brakeman 
proceeding  down  the  track  to  the  depot,  when  the  conductor 
registered  his  train,  during  which  time,  and  after  the  stop, 
the  engine  was  detached  from  the  train  for  the  purpose  of 
taking  water  at  the  tank.  The  evidence  tended  further  to 
show  that  the  train,  instead  of  being  stopped  at  what  is 
known  as  Fox  crossing,  the  usual  stopping-place  for  north- 
bound freight  trains,  and  which  was  known  to  plaintiflf  to  be 
a  safe  place  for  alighting  from  trains,  was  stopped  some  dis- 
tance before  reaching  said  crossing,  with  the  caboose  standing 
on  the  east  end  of  a  high  trestle  put  in  a  deep  ravine,  where 
heavy  timbers  had  been  dropped  in  against  piling,  making  a 
square  wall  thirty  or  forty  feet  long  and  nine  feet  high,  the 
bank  being  steep;  from  the  rail  to  the  edge  of  the  embank- 
ment was  about  five  feet,  and  the  steps  of  the  caboose  ex- 
tended about  two  feet  from  the  rail,  so  that  a  person  in 
stepping  down  from  the  caboose  would  step  within  a  foot  of 
the  edge  of  the  embankment. 

The  evidence  tends  further  to  show  that  after  the  train 
stopped,  and  after  the  action  of  the  conductor  and  brakeman 
in  leaving  the  caboose  and  going  down  to  the  depot,  and  the 
detachment  of  the  engine  from  the  train,  that  plaintiff  and  the 
other  passengers  alighted  from  the  caboose,  and  that  plaintiff, 
having  alighted,  in  assisting  one  of  the  lady  passengers  to 
alight,  fell  over  the  embankment,  receiving  the  injury  for 
which  he  sues,  consisting  of  a  broken  leg.  The  evidence, 
while  it  also  tended  to  show  that  plaintiff  had  long  been  a 
resident  of  Paris,  was  acquainted  and  knew  of  the  embank- 
ment by  having  passed  over  and  seen  it  previous  to  the  acci- 
dent, did  not  tend  to  show  that  he  knew  the  caboose  had 
stopped  there  when  he  got  off.     The  evidence  also  tended  to 


April,  1887.]     McGee  v.  Missouri  Pacific  R'y  Co.  709 

show  that  the  freight  train  on  which  plaintiff  took  passage 
was  an  extra,  which,  under  the  rules  of  the  company,  was  not 
permitted  to  carry  passengers,  but  did  not  tend  to  show  that 
plaintiff  had  knowledge  thereof. 

The  above  facts,  which  the  evidence  tended  to  establish, 
make  out  a  case  which  it  was  proper  to  submit  to  the  jury. 
Notwithstanding,  under  the  rules  of  the  company  (which 
were  unknown  to  plaintiff),  passengers  were  not  permitted  to 
ride  on  the  train  in  question,  yet  plaintiff,  when  directerl  by 
the  agents  of  defendant,  whose  duty  it  was  to  direct  passen- 
gers what  trains  they  would  enter,  to  take  passage  on  this 
train,  became  a  passenger:  Marshall  v.  Railroad,  78  Mo.  610; 
Logan  v.  Railroad,  77  Id.  668;  Hicks  v.  Railroad,  68  Id.  329; 
2  Wood's  Railway  Law,  sec.  355,  p.  1413.  At  pages  1044  and 
1045  of  the  author  last  cited,  it  is  said:  "A  person,  who  with- 
out knowing  it  is  against  the  rules  of  the  company  for  pas- 
sengers to  ride  on  a  freight  train,  if  he  pays  his  fare,  and  is 
received  as  a  passenger  by  the  conductor,  he  may  be  entitled 
to  the  rights  of  a  passenger;  and  such,  also,  may  be  the  case 
where,  notwithstanding  the  rules,  it  is  shown  that  passengers 
have  been  habitually  carried  upon  such  trains;  but  where  a 
person,  knowing  the  rules,  gets  upon  a  freight  train,  even  with 
the  assent  of  the  conductor,  and  pays  no  fare,  he  cannot  be 
regarded  as  a  passenger." 

In  the  case  before  us  there  was  abundant  evidence  show- 
ing that  passengers  were  habitually  carried  upon  defendant's 
freight  trains.  Plaintiff  having  been  received  by  defendant 
as  a  passenger  on  its  freight  train,  the  same  degree  of  care 
was  due  to  him  that  defendant  owed  to  passengers  on  its  regu- 
lar trains,  except  that  plaintiff,  in  taking  the  freight  train, 
accepted  and  traveled  on  it,  acquiescing  in  the  usual  inci- 
dents and  conduct  of  a  freight  train  managed  by  prudent  and 
competent  men:  Indianapolis  etc.  R.  R.  v.  Horst,  93  U.  S.  291. 

In  section  20,  page  234,  Thompson  on  Carriers  of  Passen- 
gers, it  is  said:  "The  company  is  held  to  as  strict  an 
accountability  for  the  negligence  of  its  employees  in  the 
management  of  a  train  with  a  caboose  attached  in  which  pas- 
sengers are  seated,  as  the  law  imi)08eH  in  the  transportation  of 
passengers  on  trains  especially  provided  for  that  purpose.  It 
cannot,  however,  be  expected  that  a  company  will  provide  its 
freight  trains  with  all  the  conveniences  and  safeguards  against 
danger  which  may  properly  be  demanded  in  the  construction 
and  operation  of  cars  designed  solely  for  the  transportation  of 


710  McGee  v.  Missouri  Pacific  R'y  Co.     [Missouri, 

passengers The  ordinary  rule  that  the  company  must 

provide  safe  and  convenient  means  of  getting  on  and  ofif 
trains  obviously  has  but  slight  application  to  the  case  of  a 
passenger  traveling  on  a  freight  train." 

The  defendant  did  not  stop  its  train  at  the  usual  stopping- 
place,  where  it  was  safe  for  passengers  to  alight,  but  on  the 
contrary,  at  an  unusual  place,  where  it  was  unsafe  and 
dangerous,  before  reaching  which  the  station,  Paris,  was 
announced,  thereby  inviting  plaintiff,  nothing  to  the  contrary 
appearing,  to  get  off  when  and  where  it  stopped.  These  facts, 
in  connection  with  the  further  facts  that  the  night  was  very 
dark,  and  that  passengers  in  the  caboose  could  not  for  that  rea- 
son see  the  danger,  and  that  the  conductor,  on  leaving  the 
caboose  with  the  light,  could  or  might  have  seen  it,  made  his 
failure  to  warn  and  inform  the  passengers  of  the  dangerous 
character  of  the  surroundings  gross  negligence. 

But  it  is  argued  that  plaintiff  was  also  negligent  in  leaving 
the  caboose  under  the  circumstances,  and  that  the  demurrer 
to  the  evidence  ought  to  have  been  sustained  for  that  rea- 
son. We  are  of  a  different  opinion.  The  slowing  up  of  the 
train  as  it  approached  Paris,  the  sounding  of  the  whistle,  the 
announcement  by  the  brakeman  of  the  station,  stopping 
the  train,  the  act  of  the  conductor  and  brakeman  leaving  the 
caboose  with  the  light,  the  detachment  of  the  engine  to  take 
water,  can  be  construed  in  no  other  light  than  as  a  direction 
to  the  passengers  to  alight  then  and  there;  and  plaintiff,  in  the 
absence  of  anything  appearing  to  the  contrary,  had  a  right  to 
conclude  that  it  would  be  safe  for  him  to  alight  at  that  place: 
Leslie  v.  Railroad,  88  Mo.  50;  Terre  Haute  etc.  R.  R.  v.  BucFa 
Adm'r,  96  Ind.  347;  Beach  on  Contributory  Negligence,  173; 
and  section  23,  page  71,  where  it  is  said:  "When  the  defend- 
ant, by  his  own  negligent  or  wrongful  acts  or  omissions, 
throws  plaintiff  off  his  guard,  or  when  the  plaintiff  acts  in  a 
given  instance  upon  a  reasonable  supposition  of  safety  induced 
by  the  defendant,  —  when  there  is,  in  reality,  danger  to  which 
plaintiff  is  exposing  himself  in  a  way  and  to  an  extent  which 
but  for  the  defendant's  inducement  might  be  imputed  to  the 
plaintiff  as  negligence  sufiBcient  to  prevent  a  recovery, — such 
conduct  on  the  part  of  plaintiff,  so  induced,  will  not  consti- 
tute contributory  negligence  in  law,  and  the  defendant  will 
not  be  heard  to  say  that  the  plaintiff's  conduct  under  such 
circumstances  is  negligent,  for  the  purpose  of  a  defense  to  the 
action If  the  plaintiff  exercises  ordinary   care   and 


April,  1887.]    McGee  v,  Missouri  Pacific  R'y  Co.  711 

prudence  under  the  circumstances  in  relying  upon  defendant's 
inducement,  or  in  obeying  defendant's  orders  and  directions, 
he  may  have  his  action." 

It  is  next  insisted  that  the  second  instruction  given  for 
plaintiflf  is  erroneous,  because  it  is  too  general,  in  telling  the 
jury  that  if  plaintiflf  exercised  "  due  care,"  etc.,  and  did  not 
specifically  set  out  all  the  circumstances  tending  to  show  con- 
tributory negligence.     The  instruction  is  as  follows:  — 

"2.  If  the  jury  find  from  the  evidence  that  plaintiflf  was  a 
passenger  on  defendant's  said  train;  and  that  it  was  dark 
when  said  train  arrived  at  Paris;  and  that  defendant's  agents 
and  servants  stopped  said  train  so  that  the  caboose  stood  upon 
a  high  embankment,  the  side  of  which  was  perpendicular;  and 
that  said  place  was  a  dangerous  place  for  passengers  to  alight 
from  said  train;  and  that  said  place  was  not  the  usual  and 
ordinary  stopping-place  for  freight  trains  at  said  station; 
and  that  the  brakeman  of  said  train  announced  the  station; 
and  that  plaintiflf,  believing  that  said  train  was  at  its  usual 
stopping-place,  and  that  no  other  opportunity  would  be  oflfered 
him  to  alight  from  said  train  at  said  station;  and  further  find 
that  defendant's  said  agents  and  servants  neglected  to  warn 
plaintiflf  of  the  dangerous  character  of  the  place,  or  that  he 
must  not  attempt  to  alight  at  said  place;  and  that  they  car- 
ried away  their  lanterns  and  failed  to  furnish  plaintiflf  any 
light  by  which  to  alight  from  said  train, — they  will  find 
defendant  guilty  of  negligence  towards  plaintiflf;  and  if  the 
jury  BO  find  the  defendant  guilty  of  negligence  towards  plain- 
tiflf, and  that,  as  the  direct  and  immediate  consequence  of 
such  negligence  on  defendant's  part,  plaintiflf,  while  exercising 
due  care  on  his  part,  alighted  from  said  train,  and  fell  down 
the  embankment  at  said  dangerous  place,  and  sustained  the 
injuries  complained  of  in  plaintiflf's  petition,  they  will  find  a 
verdict  for  plaintiflf." 

We  have  already  shown  that  it  was  not  negligent  in  plain- 
tiflf in  alighting  from  the  train  at  the  time  he  did;  and  inas- 
much as  there  is  nothing  in  the  case  before  us  to  show  that 
plaintiflf  in  leaving  the  caboose  was  not  exercising  due  care, 
the  error  complained  of,  if  it  may  be  so  called,  was  imma- 
terial, especially  so  in  view  of  the  evidence  which  would  have 
justified  the  court  in  adding  after  the  words  "duo  care,"  "  and 
there  being  no  evidence  tending  to  show  that  plaintiflf  was  not 
exercising  due  care." 

It  is  also  insisted  that  the  court  erred  in  admitting  evi- 


712  Gay  v.  Gillilan.  [Missouri, 

dence  to  show  that  it  was  the  custom  and  usage  for  defend- 
ant's freight  trains  to  carry  passengers.  The  fact  of  such 
custom  was  testified  to  by  a  number  of  witnesses,  and  that  it 
was  notorious,  and  the  reception  of  the  evidence  was  war- 
ranted by  the  following  authorities:  Wood  on  Master  and 
Servant,  sec.  401,  p.  776;  Lawson  on  Custom,  41,  42. 

Nor  was  error  committed  in  the  reception  of  evidence  to 
prove  the  usual  stopping-place  of  freight  trains  at  the  station 
in  Paris:  Tibby  v.  Railroad,  82  Mo.  299;  Brassel  v.  Railroad, 
84  N.  Y.  241;   Wood  v.  Railroad,  49  Mich.  370. 

The  cause  having  been  fairly  tried,  the  judgment  is  aflBrmed, 
with  the  concurrence  of  the  other  judges. 

Rights  of  Person  Received  A3  Passenger  on  freight  train:  Chicago  etc 
£.  R.  Co.  V.  Flagg,  92  Am.  Dec.  1S3,  and  note  137;  Arnold  v.  TlUnoia  etc. 
B.  R.  Co.,  25  Am.  Rep.  383. 

Right  of  Person  Traveling  on  Freight  Train  as  passenger  to  recover 
for  injury  received  through  the  negligence  of  the  company  or  its  employees: 
Creed  v.  Pennsylvania  P.  R.  Co.;  27  Am.  Rep.  693;  Houston  etc.  Ry  Co.  v. 
Moore,  30  Id.  98;  Lucas  v.  Milwaukee  etc.  R\j  Co.,  14  Id.  735;  Eaton  v.  Dda,- 
vxire  etc.  R.  R.  Co.,  15  Id.  513;  Dunn  v.  Grand  Trunk  etc.  R'y  Co.,  4  Id.  267. 

Liability  of  Carrier  where  Station  is  Announced  and  train  stopped 
before  reaching  it,  whereupon  passenger  alights  amd  receives  an  injnryj 
Mitchell  V.  Chicago  etc.  R'y  Co.,  47  Am.  Rep.  566. 


Gay  v.  Gillilan. 

[92  MissocBi,  250.J 

To  Establish  Undue  Infltjence  Sufficient  to  Avoid  Will,  the  circtim* 
stances  of  its  execution  need  not  be  inconsistent  with  every  other 
hypothesis.  All  that  is  necessary  is,  that  the  evidence  of  the  party  at- 
tacking the  will  of  a  person  of  sound  mind,  on  the  ground  of  undue 
influence,  shall  preponderate  over  the  evidence  adduced  and  the  pre- 
sumptions  prevailing  on  behalf  of  the  proponents  of  the  will. 

Mkans  by  Which  Undue  Influence  over  a  testator  is  acquired  are  imma- 
terial. 

Uhpue  Influence.  —  Persuasion,  appeals  to  the  affections,  of  ties  of  kin- 
dred, to  a  sentiment  of  gratitude  for  past  services,  or  pity  for  future 
destitution,  and  the  like,  do  not  constitute  undue  influence.  But  pres- 
sure of  whatever  character,  whether  acting  on  the  fears  or  the  hopes,  if 
so  exerted  as  to  overpower  the  volition  without  convincing  the  judgment, 
is  a  species  of  restraint  under  which  no  valid  will  can  be  made.  Impor- 
tunity or  threats,  such  as  the  testator  has  not  the  courage  to  resist, 
moral  command  asserted,  and  yielded  to  for  the  sake  of  peace  and  quiet, 
or  of  escaping  from  distress  of  mind  or  social  discomfort,  if  carried  to  a 
degree  in  which  the  free  play  of  the  testator's  judgment,  discretion,  or 
wishes  is  overborne,  will  constitute  undue  influence,  though  no  force  Im 
used  or  threatened. 


April,  1887.]  Gay  v.  Gillilan.         *  71S 

I»  Undtti  Inflttence  is  Once  Shown  to  Exist,  every  gift  from  the  weaker 
party  to  the  stronger  13  presnmptively  tainted  by  such  influence;  and 
the  recipient  must  assume  the  burden  of  establishing  its  fairness  and 
validity. 

Equity  will  Relieve  against  Fraud  in  Procurino  Will,  if  the  fraud 
does  not  go  to  the  whole  will,  but  only  to  some  particular  clause,  or 
where  the  fraud  is  in  obtaining  the  consent  of  the  next  of  kin  to  the  pro- 
bate  of  the  will. 

Existence  of  Confidential  ob  Fiduciary  Relations  imposes  upon  the 
recipient  of  a  gift  the  onus  of  establishing  its  absolute  fairness.  In  the 
presence  of  such  relations,  a  court  of  equity  will  presume  confidence 
placed  and  influence  exerted. 

DlSINHEBITINO  BY  TESTATOR  OF  SOMB  OF  HIS  CHILDREN,  without  apparent 

cause,  imposes  upon  those  claiming  under  the  will  the  necessity  of  giving 
some  reasonable  explanation  of  its  unnatural  character. 

H.  C.  McDougal  and  Prosaer  Eay,  for  the  appellants. 
Rrish  and  Alexander,  for  the  respondents. 

By  Court,  Sherwood,  J.  This  suit  is  a  statutory  proceed- 
ing to  determine  whether  the  instrument  executed  January 
13,  1882,  was  the  last  will  of  Nathan  Gillilan,  deceased.  He 
died  December  17,  1882.  Plaintiffs  claim  that  it  was  made 
under  undue  influence,  obtained  and  exercised  by  his  son 
George,  one  of  the  defendants,  and  the  principal  beneficiary,  by 
threats  of  taking  his  father's  life.  Other  grounds  were  alleged 
in  the  petition, —  that  the  testator  was  not  possessed  of  sufli- 
cient  testamentary  capacity  to  make  a  will,  and  was  intoxicated 
when  he  signed  the  instrument  in  question.  The  testimony 
exhibits  a  considerable  degree  of  conflict  as  to  whether  the 
testator  was  intoxicated  when  the  will  was  made,  as  to  the 
condition  of  his  mind  at  that  time,  and  as  to  whether  there 
was  undue  influence  exerted  in  securing  the  execution  of  the 
will. 

Objections  are  taken  to  the  first  instruction,  given  on  behalf 
of  the  proponents  of  the  will;  it  is  as  follows:  — 

"  The  jury  are  instructed  that  the  only  issue  in  this  case  is, 
whether  or  not  the  instrument  in  writing  offered  in  evidence  is 
the  last  will  and  testament  of  Nathan  Gillilan,  deceased.  And 
if  they  find,  from  the  evidence,  that  ho  signed  in  the  manner 
testified  by  the  subscribing  witnesses,  and  at  the  time  of  such 
signing  ho  had  sufficient  understanding  to  comprehend  the 
transaction,  the  nature  and  extent  of  his  property,  and  to  whom 
he  was  giving  the  same,  the  jury  should  find  that  he  had  suffi- 
cient mental  capacity  to  make  a  will,  notwithstanding  ho  was, 
from  the  use  of  intoxicating  liquors,  or  otherwise,  weaker  in 


714  *        Gay  v.  Gillilan.  [Missouri, 

body  and  mind  than  during  his  more  vigorous  manhood.  And 
if  the  jury  find  that  his  understanding  was  thus  suflScient, 
they  should  find  that  such  instrument  was  and  is  the  last 
will  and  testament  of  Nathan  Gillilan,  unless  they  further 
find  that  the  making  and  signing  thereof  was  procured  by  an 
undue  influence,  which  amounted  to  a  moral  force  or  coercion, 
destroying  free  agency,  and  substituting  the  will  of  George  W. 
Gillilan  for  that  of  his  father;  and  there  must  be  proof  that  it 
was  obtained  by  force  or  coercion;  and  in  order  to  set  aside 
the  will  of  a  person  of  the  sufficient  mental  capacity  aforesaid, 
on  the  ground  of  undue  influence,  it  must  be  shown  that  the 
circumstances  of  its  execution  are  inconsistent  with  any  other 
hypothesis  than  such  undue  influence,  which  cannot  be  pre- 
sumed, but  must  be  shown  in  connection  with  the  will;  and  it 
devolv^es  upon  those  contesting  the  will  to  show  such  undue 
influence  by  a  preponderance  of  the  testimony." 

This  instruction  is  manifestly  erroneous  in  that  portion  of 
it  which  declares  that,  "  in  order  to  set  aside  the  will  on  the 
ground  of  undue  influence,  it  must  be  shown  that  the  circum- 
stances of  its  execution  are  inconsistent  with  any  other  hypothe- 
sis than  such  undue  influence,  which  cannot  be  presumed,  but 
must  be  shown  in  connection  with  the  will;  and  it  devolves 
upon  those  contesting  the  will  to  show  such  undue  influence 
by  a  preponderance  of  the  testimony."  In  civil  cases  "  it  is 
not  necessary  that  the  minds  of  the  jurors  be  freed  from  all 
doubt;  it  is  their  duty  to  decide  in  favor  of  tbs  party  on  whose 
side  the  weight  of  the  evidence  preponderates,  and  according 
to  the  reasonable  probability  of  truth."  In  such  cases  "  it  is 
sufficient  if  the  evidence  on  the  whole  agrees  with  and  sup- 
ports the  hypothesis  which  it  is  adduced  to  prove;  but  in 
criminal  cases  it  must  exclude  every  other  hypothesis  but  that 
of  the  guilt  of  the  party":  1  Greenl.  Ev.,  14th  ed.,  sec.  13  a; 
3  Id.,  sec.  29.  It  will  be  observed  that  the  portion  of  the  in- 
struction now  being  criticised  lays  down  a  rule  as  stringent  in 
its  operation  in  civil  cases  as  the  one  which  prevails  in  crimi- 
nal cases.  Indeed,  it  may  be  said  that  the  rule  laid  down  in 
this  instance  is  more  stringent  than  the  one  obtaining  in  crimi- 
nal cases;  for  in  the  latter  class  of  cases  it  is  usual  to  use  the 
qualifying  word  "reasonable"  in  connection  with  the  word 
"hypothesis":  Wills  on  Circumstantial  Evidence,  149;  Com- 
monwealth V.  Costleyy  118  Mass.  1. 

Here  it  will  be  noted  that,  in  order  to  defeat  the  will  of 
Nathan  Gillilan  on  the  ground  of  undue  influence,  the  instruc- 


April,  1887.]  Gay  v.  Gillilan.  715 

tion  in  question  requires  the  contestants  to  show  that  the 
circumstances  of  the  execution  of  the  will  are  inconsistent 
with  any  other  hypothesis  than  such  undue  influence,  whether 
Buch  hypothesis  was  a  fanciful  or  a  reasonable  one.  Even  if 
the  qualifying  word  "  reasonable  "  had  been  used  in  the  in- 
struction, it  would  have  been  unwarranted  under  the  authori- 
ties cited.  Elsewhere  it  has  been  determined  that  in  a  civil 
case  an  instruction  is  erroneous  which  required  a  party  to 
establish  his  claim  "by  a  clear  pceponderance  of  the  evi- 
dence": Bitter  v.  Saathoff,Q8  111.  266.  In  this  court  an  in- 
struction was  condemned  by  intimation,  no  direct  ruling  being 
necessary,  which  made  it  a  condition  precedent  to  plaintiff's' 
recovery  that  they  show  by  clear  and  certain  proof  that  de- 
fendant did  "maliciously  kill,"  etc.:  Culbertson  v.  Hill,  87 
Mo.  553.  In  Nichols  v.  Winfrey,  79  Id.  544,  an  action  for  the 
wrongful  and  malicious  killing  of  the  plaintiff's  former  hus- 
band, it  was  laid  down  that  it  was  not  necessary,  to  a  recovery 
of  damages,  that  the  defendant's  guilt  should  be  established 
beyond  a  reasonable  doubt,  but  that  it  was  suflBcient  for  the 
plaintiff  to  make  out  her  caee  in  accordance  with  the  rule 
prevalent  in  other  civil  cases.  And  Greenleaf,  though  in  ear- 
lier editions  asserting  a  difierent  doctrine,  yet  in  the  last 
edition  it  is  admitted  in  a  note  that  the  doctrine  of  the  text 
is  not  well  supported:  2  Greenl.  Ev.,  14th  ed.,  sec.  426,  and 
cases  cited;  1  Id.,  sec.  13  a. 

And  I  do  not  consider  that  the  vice  of  the  words  commented 
on  was  neutralized  by  the  remaining  words  of  the  instruction; 
for  the  jury,  notwithstanding  those  remaining  words,  must 
have  been  impressed  with  the  erroneous  idea  already  conveyed 
to  their  minds  by  the  former  objectionable  words.  It  is  a  fact 
deserving  of  much  consideration  that  no  case  has  been  in- 
stanced by  counsel  where  an  instruction  requiring  that  those 
who  attack  the  validity  of  a  will  on  the  ground  of  undue  in- 
fluence should  show  that  the  circumstances  of  its  execution 
are  inconsistent  with  any  other  hypothesis  than  such  undue 
influence,  has  received  the  sanction  of  an  appellate  court.  It 
is  true  that  the  original  of  the  idea  conveyed  by  the  words 
under  discussion  is  thought  to  be  found  in  the  remarks  oi 
Lord  Chancellor  Cranwortb,  in  Boyse  v.  Rossborough,  6  H  L. 
Cas.,  loc.  cit.f  51. 

But  such  observations,  however  appropriate  when  and  where 
made,  should  not  be  used  as  the  basis  for  an  instruction  to  a 
jury  trying  an  issue  devisavit  vel  non.     The  remarks  of  tho 


716 


Gay  v.  Gillilan.  [Missouri,'.^Bi 


lord  chancellor  were:  "  But,  in  order  to  set  aside  the  will  of  a 
person  of  sound  mind,  it  is  not  suflScient  to  show  that  the  cir- 
cumstances attending  its  execution  are  consistent  with  the 
hypothesis  of  its  having  been  obtained  by  undue  influence. 
It  must  be  shown  that  they  are  inconsistent  with  a  contrary 
hypothesis."  I  take  it  that  these  words  do  not  go  so  far  as 
at  first  blush  they  might  seem  to  do.  I  think  that  the  mean- 
ing they  were  intended  to  convey  was  simply  this:  that  the 
burden  of  proof  being  on  those  who  attack  a  will  on  the 
ground  of  undue  influence,  it  is  not  euflScient  for  them  barely 
to  show  that  the  circumstances  of  the  will  are  consistent  with 
the  hypothesis  of  undue  influence;  for  this  would  be  but  to 
create  an  equipoise  in  the  testimony,  and  the  onus  being  on 
the  party  attacking  the  will,  he  must  go  a  step  further,  and 
show  by  any  suitable  evidence  an  inconsistency  between  the 
circumstances  of  the  execution  of  the  will  and  of  its  being 
executed  without  the  interposition  of  undue  influence.  This 
is  all,  when  rightly  understood,  I  believe  the  remarks  of  the 
lord  chancellor  to  mean.  In  other  words,  the  evidence  on 
the  part  of  a  party  attacking,  on  the  ground  of  undue  influ- 
ence, the  will  of  a  person  of  sound  mind,  must  preponderate 
over  the  evidence  adduced,  and  the  presumptions  prevailing, 
on  behalf  of  the  proponents  of  the  will. 

Briefly  told,  the  testimony  of  disinterested  witnesses,  as  to 
the  exercise  of  undue  influence  by  George  over  his  father  is 
this:  Nathan,  the  father,  at  the  time  of  the  execution  of  the 
will  in  question,  was  nearly  eighty  years  of  age.  Originally 
of  a  vigorous  mind  and  body,  years  of  excessive  indulgence 
in  strong  drink,  as  well  as  advanced  age,  had  greatly  im- 
paired his  former  mental  and  physical  vigor.  His  son  George 
had  acquired  dominion  over  him,  as  the  following  testimony 
Bhows.  He  frequently  annulled  "trades"  his  father  had 
made.  He  caused  his  aged  father  great  distress  of  mind  by 
circulating  reports  that  his  father  had  debauched  his  wife. 
This  he  admitted  when  on  the  witness-stand,  merely  denying 
that  he  had  ever  accused  his  father  of  that  crime  to  his  face. 
He  also  admitted  that  he  had  told  others  that  he  would  charge 
his  father  with  that  crime  in  his  petition  for  divorce  from  his 
wife. 

On  the  very  morning  of  the  day  the  will  was  made,  George 
had  a  quarrel  with  his  father,  called  him  a  liar,  cursed  him, 
seized  a  chair  and  threatened  to  mash  him  through  the  floor. 
When  this  occurred,  his  father  fled  through  the  door,  crying 


April,  1887.]  Gay  v.  Gillilan.  717 

out,  "  Don't  let  him  hurt  me  I"  Thereupon  James  Clendenin, 
a  grandson  of  the  testator,  was  called  to  come  in  from  the 
barn,  and  he  did  so,  and  rebuked  his  uncle  for  his  brutal  con- 
duct. This  was  the  testimony  of  Massingill,  a  tenant  on  the 
testator's  farm,  who  also  testified  that  George  quarreled  with 
his  father  whenever  George  came  to  his  father's  house,  and 
his  father  seemed  afraid  of  him.  Massingill  also  testified  that, 
on  the  occasion  referred  to,  before  George  picked  up  the  chair 
to  strike  his  father,  the  latter  had  threatened  to  disinherit 
him,  and  reminded  him  of  the  falsehoods  he  had  told  about 
him  respecting  his  wife.  The  testimony  of  Massingill  is  sub- 
stantially corroborated  by  Mrs.  Massingill,  his  wife.  These 
witnesses  are  entirely  disinterested,  and  they  stand  unim- 
peached.  Their  testimony  is  also  supported  by  that  of  another 
disinterested  witness, — the  divorced  wife  of  George, — plainly 
showing  the  dread  with  which  George  had  inspired  his  father, 
and  the  fear  the  latter  had,  should  he  change  his  will,  of  being 
killed  by  his  son.  There  is  abundant  evidence  of  the  same 
sort  throughout  this  record,  but  I  have  chosen  to  mention  first 
that  of  impartial  witnesses. 

No  one  can  read  this  record  without  being  painfully  im- 
pressed with  the  idea  that  George,  by  his  most  unfilial  con- 
duct and  threats,  had  placed  the  mind  of  his  aged  and  infirm 
father  in  complete  subjection  to  his  demands.  And  it  can 
make  no  difference  how  such  undue  influence  was  acquired 
over  the  mind  of  a  father,  already  enfeebled  by  advancing 
years  and  the  infirmities  incident  to  long-continued  habits  of 
excessive  dissipation, — whether  by  slanders  or  threats,  or  by 
a  combination  of  these  unwarranted  means.  My  ideas  on  this 
point  I  find  very  aptly  and  forcibly  expressed  in  the  charge 
of  Sir  J.  P.  Wilde,  in  Hall  v.  Hall,  L.  R.  1  Pro.  &  D.  481,  where, 
in  summing  up,  he  gave  the  following  direction  to  the  jury  on 
the  question  of  undue  influence:  "To  make  a  good  will,  a 
man  must  be  a  free  agent.  But  all  influences  are  not  unlaw- 
ful. Persuasion,  appeals  to  the  aflections,  of  ties  of  kindred, 
to  a  sentiment  of  gratitude  for  past  services,  or  pity  for  future 
destitution,  or  the  like, — these  are  all  legitimate,  and  may  be 
fairly  pressed  on  a  testator.  On  the  other  hand,  pressure  of 
whatever  character,  whether  acting  on  the  fears  or  the  hopes, 
if  so  exerted  as  to  overpower  the  volition  without  convincing 
the  judgment,  is  a  species  of  restraint  under  which  no  valid 
will  can  be  made.  Importunity  or  threats,  such  as  the  testa- 
tor has  not  the  courage  to  resist;  moral  command  aeserted,  and 


718  Gay  v.  Gillilan.  [Missouri, 

yielded  to  for  the  sake  of  peace  and  quiet,  or  of  escaping  from 
distress  of  mind  or  social  discomfort, — these,  if  carried  to  a 
degree  in  which  the  free  play  of  the  testator's  judgment,  dis- 
cretion, or  wishes  is  overborne,  will  constitute  undue  influence, 
though  no  force  is  either  used  or  threatened.  In  a  word,  a 
testator  may  be  led,  but  not  driven;  and  his  will  must  be  the 
offspring  of  his  own  volition,  and  not  the  record  of  some  one 
else's." 

And  where  undue  influence  is  once  proved  to  exist,  by  what- 
soever means  produced  or  acquired,  whenever  the  mind  of  one 
person  is  reduced  to  a  state  of  vassalage  to  that  of  another, 
and  a  gift  is  shown  to  have  been  made  by  the  weaker  party  to 
the  stronger, — then  the  burden  of  proof  will  be  shifted;  the 
gift  will  become  presumptively  void,  and  the  onus  of  uphold- 
ing its  fairness  and  validity  will  rest  upon  the  shoulders  of 
the  recipient  of  the  gift.  This  rule  is  firmly  established  in 
regard  to  gifts  made  by  deed,  and  the  same  principle  holds  in 
regard  to  wills,  and  so  this  court  has  declared:  Garvin^ 8  AditCr 
y.  Williams,  44  Mo.  465;  100  Am.  Dec.  314;  Harvey  v.  Sulleniy 
46  Mo.  147;  2  Am.  Rep.  491. 

And  though  it  is  said  that  a  court  of  equity  will  not  set  aside 
a  will  obtained  by  fraud,  though  no  satisfactory  reason  has 
ever  been  given  why  it  should  not  do  so,  yet  such  a  court  will 
interfere  "  where  the  fraud  does  not  go  to  the  whole  will,  but 
only  to  some  particular  clause,  or  where  the  fraud  is  in  unduly 
obtaining  the  consent  of  the  next  of  kin  to  the  probate,  courts 
of  equity  will  lay  hold  of  these  circumstances  to  declare  the 
executor  a  trustee  for  the  next  of  kin  ":  1  Story's  Eq.  Jur.,  sees. 
184,  252,  254,  283,  440.  In  Gaines  v.  Chew,  2  How.  619,  Jus- 
tice McLean,  speaking  for  the  court,  gave  a  very  strong  inti- 
mation that  if  all  other  and  ordinary  methods  of  procedure 
failed  of  securing  the  requisite  redress  in  the  probate  court,  a 
court  of  chancery  might  feel  called  upon  to  fall  back  on  its 
own  inherent  powers  in  order  to  accomplish  the  end  desired. 
The  foregoing  instances  of  a  court  of  equity  refusing  to  inter- 
fere where  fraud  clothes  the  whole  will  as  with  a  garment,  and 
yet  interferes  where  it  vitiates  with  its  foul  touch  "  some  par- 
ticular clause,"  is  the  only  instance  to  be  found  in  the  books 
where  a  court  of  equity  fails  to  observe  its  predominant  maxim 
to  do  "  nothing  by  halves." 

But  notwithstanding  the  refusal  of  a  court  of  equity  to  en- 
tertain jurisdiction  of  a  proceeding  to  set  aside  a  will  obtained 
by  fraud,  yet  those  equitable  principles  which  obtain  in  that 


April,  1887.]  Gay  v.  Gillilan.  719 

court  respecting  deeds  and  other  contracts  obtained  by  fraudu- 
lent contrivances  are  constantly  and  of  necessity  applied  by 
courts  of  law  in  instances  and  upon  issues  like  the  present 
one.  This  was  so  ruled  in  the  two  cases  cited  from  our  own 
reports;  and  the  rule  is  the  same  elsewhere.  Where  confi- 
dential or  fiduciary  relations  exist,  and  a  gift  be  bestowed 
or  a  contract  be  made  between  such  parties,  then  the  party 
occupying  the  attitude  of  guardian,  agent,  trustee,  medical 
adviser,  etc.,  who  is  the  recipient  of  such  gift,  etc.,  has  the 
onus  to  bear  of  establishing  the  absolute  fairness  of  the  given 
transaction:  Street  v.  Goes,  62  Mo.  226,  and  cases  cited;  Yosti 
V.  LaughraTiy  49  Id.  594,  and  cases  cited;  Cadwallader  v.  West, 
48  Id.  483.  And  while  it  is  true  that  undue  influence  will  not 
be  presumed,  yet  where  such  facts  are  proved  as  will  authorize 
a  jury  to  find  the  existence  of  undue  influence,  then  the  burden 
shifts,  and  it  then  devolves  on  the  party  charged  to  exonerate 
himself  from  such  charge,  in  like  manner  as  in  the  case  of 
fiduciary  or  confidential  relations. 

Courts  of  law,  when  called  upon  for  redress  in  such  cases, 
give  it  on  precisely  the  same  principle  that  guides  courts  of 
equity  in  analogous  cases.  That  principle  of  redress,  in  order 
to  be  fully  efficacious,  must  be  as  broad  in  its  application  as 
the  mischief  it  is  designed  to  meet  and  to  remedy.  In  the  apt 
and  forcible  language  of  Sir  Samuel  Romilly,  in  his  celebrated 
reply  in  Huguenin  v.  Baseley,  14  Ves.  285,  286,  "  the  relief 
stands  upon  a  general  principle,  applying  to  all  the  variety  of 
relations  in  which  dominion  may  be  exercised  by  one  person 
over  another."  The  only  diversity  observable  in  the  applica- 
tion of  the  principle  in  question  being  this:  that  in  case  of 
fiduciary  relations,  a  court  of  equity  will  presume  confidence 
placed  and  influence  exerted.  Where  no  such  relations  exist, 
the  influence  or  the  dominion  acquired  must  be  proved;  but 
when  proved,  the  rule  which  equity  applies  is  the  same  in  the 
latter  as  in  the  former  class  of  cases:  2  Pomeroy's  Eq.  Jur., 
sec.  951,  and  cases  cited;  Dent  v.  Bennett,  4  Mylne  &  C.  269; 
Smith  V.  Kay,  7  H.  L.  Gas.  779,  per  Lord  Kingsdoun. 

There  is  yet  another  ground  why  the  onus  should  rest  on  the 
proponents  of  this  will, — the  testator,  without  apparent  cause, 
virtually  disinherited  four  out  of  six  of  his  children,  or  their 
descendants.  George  received  the  "  lion's  share,"  and  his 
brother  John  D.  the  substantial  residue.  It  is  laid  down  by 
a  writer  of  eminent  authority  that  "  where  the  will  is  unrea- 
sonable in  its  provisions,  and  inconsistent  with  the  duties  of 


720  State  v.  Thurston.  [Missouri, 

the  testator  with  reference  to  his  property  and  family,  .... 
this,  of  itself,  will  impose  upon  those  claiming  under  the  in- 
strument the  necessity  of  giving  some  reasonable  explanation 
of  the  unnatural  character  of  the  will":  1  Redfield  on  Wills, 
516.  "  Gross  inequality  in  the  dispositions  of  the  instrument, 
where  no  reason  for  it  is  suggested,  either  in  the  will  or  other- 
wise, may  change  the  burden,  and  require  explanation  on  the 
part  of  those  who  support  the  will  to  induce  the  belief  that  it 
was  the  free  and  deliberate  offspring  of  a  rational,  self-poised, 
and  clearly  disposing  mind":  1  Redfield  on  Wills,  537; 
Lynch  v.  Clements,  24  N.  J.  Eq.  431,  and  cases  cited. 

For  the  reasons  given,  the  instruction  must  be  held  erro- 
neous, and  the  judgment  is  reversed  and  the  cause  remanded, 
with  directions  to  proceed  in  conformity  with  this  opinion. 


Undttx  Invluknce,  Pbesumftion  or  in  Casb  or  Sfibitual  Advisebs, 
including  professed  spiritualistic  mediums:  See  Conner  v.  Stanley,  ante,  p.  84. 
What  influences  operating  upon  testator  are  regarded  as  legitimate:  See  not* 
to  Clapp  V.  FuUerton,  90  Am.  Dec.  690;  Floyd  v.  Floyd,  49  Id.  626;  and  SmaU 
V.  SmaU,  16  Id.  253,  and  note  257-263.  Confidential  relations  giro  rise  to 
presumption  of  nndae  influence:  Oarvin'a  Adm'r  v.  WUUams,  100  Id.  314, 
and  note. 


State  v.  Thurston. 

[92  MISSOOBI,  825.1 
CoNsnrtTTiONAL  Law.  —  Entire  statute  need  not  be  set  forth  in  an  act 
amending  it  by  adding  new  sections  or  altering  old  ones.     It  is  only 
when  all  the  sections  of  a  statute  are  amended  that  the  entire  act,  as 
amended,  must  be  set  out  in  the  amendatory  statute. 

Draffen  and  Williams,  for  the  appellant. 
Boone,  attorney-general,  for  the  state. 

By  Court,  Norton,  C.  J.  The  defendant  was  indicted  in 
the  Cooper  County  circuit  court,  as  a  druggist  and  pharma- 
cist, for  selling  intoxicating  liquors  in  less  quantities  than  one 
gallon  without  a  written  prescription  first  had  and  obtained 
from  a  regularly  registered  and  practicing  physician.  De- 
fendant was  tried,  convicted,  and  fined  one  hundred  dollars, 
and  has  appealed  to  this  court;  and  the  sole  ground  relied 
upon  for  a  reversal  of  the  judgment  is  the  alleged  unconstitu- 
tionality of  the  act  of  the  legislature  on  which  the  indictment 
was  founded. 

The  act  of  1883  (Acts  1883,  p.  90),  on  which  the  indict- 


April,  1887.]    McFadden  v.  Missouri  Pacific  R'y  Co.       721 

ment  was  found,  amends  the  act  of  1881  (Acts  1881,  p.  130) 
by  adding  three  new  sections  thereto,  and  amending  sectioa 
8  of  said  act,  the  section  8  as  amended  being  set  out  in  full 
in  the  amendatory  act.  It  is  claimed  by  counsel  that  said 
amendatory  act  is  violative  of  section  34,  article  4,  of  the  con- 
stitution, because  it  does  not  set  out  in  full  the  whole  of  the 
act  amended.  Said  section  34  is  as  follows:  "No  act  shall 
be  amended  by  providing  that  designated  words  thereof  bo 
stricken  out,  or  that  designated  words  be  inserted,  or  that 
designated  words  be  stricken  out  and  others  inserted  in  lieu 
thereof;  but  the  words  to  be  stricken  out,  or  the  words  to  be 
inserted,  or  the  words  to  be  stricken  out  and  those  inserted  in 
lieu  thereof,  together  with  the  act  or  section  amended,  shall  be 
Bet  forth  in  full  as  amended." 

It  will  be  perceived  that  this  section  does  not  forbid  the 
amendment  of  an  act  by  the  passage  of  an  act  adding  new 
sections  to  the  act  amended;  and  it  will  be  seen  that  any 
section  of  a  statute  or  act  may  be  amended,  provided  the  sec- 
tion, when  amended,  shall  be  fully  set  forth  in  the  amenda- 
tory act  as  amended.  It  is  only  when  all  the  sections  of  an 
act  are  amended  that  the  entire  act  as  amended  is  required  to 
be  set  out:  State  v.  Chambers,  70  Mo.  625. 

The  act  in  question  is  not  open  to  the  objection  urged 
against  it,  and  the  judgment  is  hereby  aflBrmed,  with  the  con- 
currence of  the  other  judges. 


Statutes,  Amendment  of  bt  Sections,  What  Requibeo:  Undenoood  v. 
McDvfftit,  93  Am.  Dec.  194,  and  note;  Sedgwick  on  Statutory  and  Constitn- 
tional  Law,  Pomeroy's  notes,  632. 


MoFadden  V.  Missouri  Pacific  Railway  Company. 

r92  MiBSODBl,  848.] 

PrrrnoK  nt  Action  against  Common  Carrier  alleging  the  delivery  and 
lou  of  the  property  throngh  negligence  in  managing  and  operating  the 
train  ia  anfficient. 

OoiCMON  Carrier  canhot  by  Ant  Sort  of  Stipulation  exempt  himself 
from  the  consequences  of  his  negligence,  though  he  may,  by  special  or 
express  contract,  or  special  acceptance,  fairly  and  onderstandingly  made, 
limit  his  common-law  liability. 

Where  Mules  are  Delivered  to  Common  Carrier,  and  the  car  in  which 
they  are  transported  is  bedded  with  straw,  and  placed  next  to  the  en- 
gine, which  placing  of  the  mules  is  unusual,  dangerous,  and  negligent, 
and  the  car  is  set  on  fire  from  sparks  emitted  by  the  engine,  and  th« 
▲m.  St.  Rxr..V0L.L-4S 


722  McFadden  v.  Missouri  Pacific  R'y  Co.    [Missouri, 

mules  thereby  destroyed,  a  stipulation  in  the  bill  of  lading  that  the  car> 
rier  is  not  liable  for  "the  risk  of  loss  or  injury  to  the  mules  by  fire,  or 
any  account  whatever,"  is  so  far  invalid,  and  no  protection  to  him. 

Aix  Prior  Verbal  Negotiations  between  Shipper  and  common  carrier 
Are  merged  in  the  bill  of  lading  or  contract  of  shipment,  and  the  ship- 
per cannot  admit  the  execution  of  the  contract,  and  avail  himself  of  the 
fact  that  he  did  not  read  the  same,  or  know  its  contents,  where  no  mis- 
take,  fraud,  imposition,  or  deceit  is  charged. 

Bill  of  Ladinq,  or  Contract  of  Shipment,  stipulating  for  a  reduced  or 
special  rate  of  freight,  is  not  conclusive,  but  only  -prima  fade  evidence, 
open  to  explanation  and  contradiction. 

Where  Bill  of  Ladinq  Falsely  REcrrES  that  a  special  and  reduced  rate 
of  freight  is  given,  and  the  shipper,  in  consideration  therefor,  agrees 
to  accept  a  limited  valuation  for  the  property  transported,  in  case  of  its 
loss  through  the  negligence  of  the  carrier,  the  contract  is  not  bind- 
ing on  the  shipper,  and  the  stipulation  as  to  limited  valuation  is  void, 
as  releasing  the  carrier  for  his  liability  for  negligence. 

Portia  and  Portis,  and  Shirk,  for  the  appellant. 

Cosgrove  and  Johnston,  for  the  respondent. 

By  Court,  Ray,  J.  PlaintiflF  brought  this  action  in  the 
circuit  court  of  Cooper  County  against  the  defendant,  as  a 
common  carrier,  to  recover  the  value  of  a  car-load  of  mules 
delivered  to  defendant  at  Boonville,  to  be  transported  over  its 
railroad  to  the  state  line  at  Kansas  City.  Whilst  in  transit, 
the  car  containing  the  raules  caught  on  fire,  and  thirteen  head 
were  burned  to  death,  and  the  other  three  so  injured  as  to  be 
a  total  loss  to  the  plaintifiF. 

An  objection  was  made  to  the  introduction  of  any  evidence, 
upon  the  ground  that  the  petition  did  not  state  facts  sufficient 
to  constitute  a  cause  of  action,  which  said  objection  was  prop- 
erly overruled.  The  petition  not  only  alleged  the  delivery  and 
loss  of  the  mules  whilst  in  defendant's  possession  as  a  common 
carrier,  which  was  sufficient,  but  charged  negligence  in  man- 
aging and  operating  the  train,  whereby  the  car  was  set  on  fire, 
and  the  mules  burned,  injured,  and  destroyed.  No  other  point 
was  made  in  respect  to  the  pleadings,  and  we  need  not  set 
them  out. 

The  evidence  of  plaintiff  shows  the  delivery  of  the  mules  by 
plaintiff  to  defendant;  that  the  car  in  which  they  were  trans- 
ported was  bedded  with  straw,  and  placed  next  to  the  engine; 
that  this  was  not  customary,  but  unusual  and  dangerous,  and 
prudence  required  that  such  cars  should  be  placed  at  a  greater 
distance  in  the  train  from  the  engine;  that  the  rear  of  the  train 
was  the  safest  place,  whilst  next  to  the  engine  was,  for  such 
cars,  the  most  dangerous,  on  account  of  the  liability  of  the 


April,  1887.]    McFadden  v.  Missouri  Pacific  R'y  Co.       723 

straw  bedding  to  take  fire  from  the  sparks  of  the  engine.  It 
should  be  also  stated  that  the  train  in  question  consisted  of 
fifteen  or  twenty  cars,  but  two  of  which,  beside  the  one  in 
question,  were  loaded  with  stock,  and  of  these,  one  was  placed 
next  to  the  car  containing  the  mules  injured  by  the  fire,  or 
second  from  the  engine,  whilst  the  other  was  put  near  the  rear 
end  of  the  train,  and  next  to  the  caboose.  This  was  the  sub- 
stance of  the  evidence  in  chief  in  behalf  of  plaintiff. 

Defendant  offered  no  oral  testimony  in  the  cause,  but  relied 
upon  the  bill  of  lading  or  contract  of  shipment,  which  it  set 
tip  in  the  answer  and  read  in  evidence  at  the  trial.  The  evi- 
dence in  rebuttal  will  be  considered  later  in  the  course  of  this 
opinion. 

It  has  been  held  in  this  and  most  of  the  states,  that,  by 
special  or  express  contract,  or  special  acceptance,  fairly  and 
understandingly  made,  the  carrier  may  limit  his  common-law 
liability.  The  shipper  may  lawfully,  if  he  sees  fit,  surrender 
the  obligation  of  the  carrier  as  an  insurer  of  his  property,  but 
the  law  is  firmly  settled  in  this  state  that  the  common  carrier 
cannot,  by  any  sort  of  stipulation,  exempt  himself  from  the 
consequences  of  his  own  negligence.  We  need  not  again  dis- 
cuss that  question. 

If  placing  the  car  bedded  with  straw  containing  the  mules 
next  to  the  engine  was  unusual,  negligent,  and  dangerous,  and 
the  car  was  set  on  fire  by  sparks  from  the  engine,  and  the 
mules  thereby  destroyed,  all  of  which  the  evidence  for  plaintiff 
shows,  without  any  attempt  at  contradiction  from  defendant, 
then,  under  numerous  rulings  of  this  court,  the  provision  in 
the  contract,  whereby  the  plaintiff  assumed  "  the  risk  of  loss 
or  injury  to  the  mules  by  fire,  or  any  account  whatever,"  would 
be  so  far  invalid,  and  no  protection  to  the  defendant. 

In  an  analogous  case  the  supreme  court  of  Pennsylvania, 
in  considering  the  liability  of  common  carriers,  say:  "A  de- 
fective wheel,  or  axle,  or  frame-work,  would  confessedly  render 
them  liable,  even  as  against  the  release.  The  carrying  of  a 
combustible  article  so  near  the  engine  as  to  be  exposed  to 
sparks  was  even  more  inexcusable;  for  this  could  not  escape 
observation,  as  defects  in  the  vehicle  might":  Powell  v.  Rail' 
road,  32  Pa.  St.  414;  75  Am.  Dec.  564;  see  also  HoUapple  v. 
Railroad,  86  N.  Y.  275.  At  all  events,  in  the  absence  of  all 
opposing  evidence  on  the  part  of  defendant  in  that  behalf, 
this  court  must,  after  verdict,  assume  the  negligence  of  de- 
fendant, and  dispose  of  the  case  under  that  view. 


724  McFadden  v.  Missouri  Pacific  R'y  Co.    [MiBsouri, 

But  the  stipulation  in  the  contract  of  shipment  most  relied 
on  for  a  reversal  of  the  judgment  is  the  one  declaring  the  com- 
pany should  not  be  liable  for  more  than  one  hundred  dollars 
per  head  for  the  mules.  Such  a  stipulation,  it  is  claimed,  is 
valid  and  binding,  and  does  not  contravene  the  rule  which 
forbids  the  carrier  to  stipulate  against  his  own  negligence. 
Numerous  decisions  sustain  such  stipulations,  when  fairly 
made,  and  where  the  parties  agree  on  a  fixed  valuation  of  the 
property,  and  a  special  and  reduced  rate  of  freight  is  given 
and  received,  based  upon  the  condition  that  the  carrier  assumes 
liability  only  to  the  extent  of  the  agreed  value  of  the  property: 
Hart  V.  Railroad  J  112  U.  S.  331,  and  cases  cited. 

Other  decisions  deny  the  validity  of  such  provisions,  and 
hold  them  void,  as  releasing  the  carrier  from  the  full  and 
proper  liability  for  the  consequences  of  his  negligence:  Black 
V.  Trans.  Co.,  55  Wis.  319;  42  Am.  Rep.  713;  Moulton  v.  Rail- 
road, 31  Minn.  85;  47  Am.  Rep.  781;  United  States  Express 
Co.  V.  Backman,  28  Ohio  St.  144.  Hutchinson  on  Carriers 
says,  in  substance,  that  the  cases  cited  by  him  as  recognizing 
the  right  of  the  carrier  to  thus  limit  the  liability  as  to  value 
occur  in  states  in  which  the  law  permits  the  carrier,  by  spe- 
cial and  express  contract,  to  relieve  himself  of  the  conse- 
quences of  his  negligence  in  the  carriage  of  goods,  and  that 
these  cases  would  not  be  considered  controlling  authority  in 
those  states  in  which  such  claim  to  exemption  is  not  permitted 
to  be  made:  Sees.  247,  250. 

But  even  under  the  rule  declared  in  the  former  class  of 
decisions,  these  provisions,  thus  employed  and  resorted  to  by 
common  carriers  to  restrict  their  liability,  are  to  be  tested  by 
their  fairness,  justice,  and  reasonableness.  We  will  consider 
the  case  before  us  briefly  under  this  view.  The  answer  charges 
that  defendant  agreed  to  transport  the  mules  for  plaintiff,  be- 
tween said  points,  at  the  rate  of  thirty-one  dollars  per  car, 
which  was  charged  to  be  a  special  and  reduced  rate,  lower 
than  the  regular  rate.  The  written  contract  read  in  evidence 
recited  that  the  said  rate  was  a  reduced  rate,  made  in  con- 
sideration of  agreement,  etc.  The  execution  of  the  contract 
was  not  admitted,  but  denied  in  the  reply.  The  evidence, 
however,  showed  that  it  was  in  fact  signed  by  the  agent  of 
plaintiff  after  the  mules  were  loaded  into  the  cars,  and  just 
before  the  train  started.  This  court  has  heretofore  held  that 
all  prior  verbal  negotiations  between  the  parties  are  merged 
in  the  written  contract,  and  that  the  plaintiff  cannot  admit 


April,  1887.]     McFadden  v.  Missouri  Pacific  R'y  Co.       725 

the  execution  of  the  contract,  and  avail  himself  of  the  fact 
that  he  did  not  read  the  same  or  know  its  contents,  where  no 
mistake,  fraud,  imposition,  or  deceit  is  charged  to  have  oc- 
curred. 

In  this  case  plaintiff  claimed,  and  was  permitted  to  show 
by  parol  evidence,  that  the  said  recital  in  the  contract  of 
shipment  that  the  rate  named  was  a  reduced  rate  was  false, 
and  that  the  same  was  the  usual  and  customary  rate  charged 
all  shippers  for  similar  shipments  of  such  stock  by  the  car- 
load. The  oral  evidence  in  that  behalf  was  not  objected  to  by 
defendant,  when  offered  by  plaintiff,  and  no  exception  saved 
to  its  admission  in  evidence.  The  following  is  the  substance 
of  this  evidence,  as  given  in  the  abstract  for  plaintiff,  and  is, 
we  believe,  correct:  — 

R.  S.  Moore  testified  that  he  was  the  agent  of  the  railway 
company  at  Boonville;  that  the  bill  of  lading  in  evidence  was 
of  the  same  farm  in  use  by  the  company  in  April,  1884,  and 
had  been  for  a  year  before  that  time.  Everybody  that  shipped 
stock  used  this  form.  This  is  the  regular  rate  of  shipment  of 
stock  by  the  car-load.  The  rates  on  other  classes  of  freight  per 
car-load  were  much  higher,  considering  the  value  of  the  mules. 
These  were  the  usual  rates  paid  by  all  shippers  of  stock  by 
the  car-load. 

Mr.  Frost,  who  acted  in  behalf  of  plaintiff  in  making  the 
shipment,  and  signed  the  contract,  testified  that  nothing  was 
said  about  the  bill  of  lading  being  a  special  contract;  that  he 
never  asked  for  reduced  rates,  but  that  he  shipped  the  stock 
and  signed  the  bill  of  lading  in  this  instance  just  as  he  had 
done  in  all  others^  when  acting  for  other  shippers,  and  that  so 
far  as  he  knew,  the  bill  of  lading  in  this  case  was  the  ordi- 
nary one,  and  signed  by  him  in  all  other  cases  of  stock  ship- 
ment. 

The  written  contract  was  not,  we  think,  under  these  circum- 
Btances,  conclusive  evidence,  but  merely  privm  facie  evidence, 
that  the  given  rate  was  a  special  and  reduced  rate.  As  be- 
tween the  parties,  it  was,  in  this  respect,  open  to  explanation, 
and  impeachable  for  error,  mistake,  or  false  statement.  The 
reduced  rate,  if  such  it  was,  was  the  consideration  for  the  ex- 
emption from  liability  beyond  the  one  hundred  dollars,  even 
in  case  of  injury  and  loss  from  defendant's  negligence,  and 
parol  evidence  in  that  behalf  is,  we  think,  competent  and  ad- 
missible for  the  purpose  indicated.  The  consideration  clause 
in  bills  of  lading,  contracts,  deeds,  and  other  instruments, 


726  McFadden  v,  Missouri  Pacific  R'y  Co.     [Missouri, 

ordinarily,  has  only  the  force  and  effect  of  a  receipt,  and  is  open 
to  explanation  and  contradiction  by  parol  evidence:  Hutchin- 
son on  Carriers,  sees.  122, 123;  Fontaine  v.  Boatman's  Sav.  Inst.y 
57  Mo.  652;  Hollocher  v.  HoUocher,  62  Id.  267;  Edwards  v. 
Smith,  63  Id.  119. 

But  even  if  this  is  not  so,  it  devolved  upon  the  defendant 
to  make  the  objection  to  the  admissibility,  and  save  the  excep- 
tion, if  the  objection  was  overruled,  and  having  failed  to  do 
so,  no  complaint  can  now  be  heard  at  his  instance  in  that  be- 
half. This  case,  then,  under  this  state  of  facts,  does  not  fall 
within  the  rule  declared  in  Hart  v.  Railroad,  112  U.  S.  331, 
and  others  cited  by  counsel  for  plaintiff.  In  the  case  of  Hart 
v.  Railroad,  supra,  especially  relied  on,  the  discussion  was  had 
upon  the  terms  of  the  bill  of  lading  alone,  and  as  the  court 
Bay,  "  without '  any  evidence  upon  the  subject,  and  especially 
in  the  absence  of  evidence  to  the  contrary";  and  under  the 
qualifications  it  contains,  we  cannot  regard  it  as  controlling 
authority  in  a  case  where  the  evidence  clearly  shows  absence 
of  reduced  or  lower  rate,  or  any  graduation  of  compensation 
to  the  valuation. 

On  the  one  hand,  it  may  be,  as  is  there  said,  unjust,  unrea- 
sonable, and  repugnant  to  sound  principles  of  fair  dealing, 
for  the  shipper  to  reap  the  benefits  of  a  contract  by  which  he 
secures  a  lower  rate  than  the  carrier  might  reasonably  charge 
for  the  service  rendered,  if  there  be  no  loss,  and  to  repudiate 
it  in  case  of  loss.  Where  the  shipper  procures  the  lawful 
rates  of  the  carrier  to  be  reduced  in  express  consideration  of 
the  agreed  value,  upon  which  the  compensation  is  based,  he  is, 
under  numerous  authorities,  some  of  which  .are  cited,  held  to 
be  estopped  to  say  the  value  is  greater  when  the  loss  occurs. 
On  the  other  hand,  it  would,  we  think,  be  no  less  unfair,  unrea- 
sonable, and  unjust  that  the  carrier,  without  any  sacrifice  of 
his  interest,  or  lawful  demands,  or  dimunition  of  his  lawful 
charges,  should  secure,  without  any  consideration  therefor,  such 
important  advantages  and  release  of  liabilities  to  which  he 
would  otherwise  be  subjected  under  the  law. 

Another  case  especially  relied  on  is  the  case  of  Harvey  v. 
Railroad,  74  Mo.  538,  which  we  deem  distinguishable  from  this 
present  case,  and  which  we  will  now  examine  briefly.  In  the 
first  place,  the  action  was  brought  upon  a  special  contract. 
The  horse  was  alleged  to  be  of  the  value  of  ten  thousand  dol- 
lars, and  the  value  was  limited  by  the  contract  to  the  sum  of 
cue  hundred  dollars.    The  answer  set  up  the  aflfirmative 


\pril,  1887.]    McFadden  v.  Missouri  Pacific  R'y  Co.       727 

lefense,  that  the  defendant  had  certain  regular  rates  of  trans- 
)ortation  for  horses  of  ordinary  value,  and  that  for  those  of 
greater  value  five  per  cent  on  the  owner's  valuation  was 
jharged  in  addition;  that  defendant  asked  plaintiff  or  his 
agent  the  value  of  the  horse,  and  that  said  value  was  falsely 
represented  to  be  one  hundred  dollars,  and  that  said  valuation 
given  by  the  plaintiff  was  then  agreed  on.  Defendant  offered 
evidence  tending  to  establish  the  matters  set  up  in  the  aflfirma- 
tive  defense,  and  instructions  numbered  two  and  three,  sub- 
mitting this  evidence  to  the  jury,  were  refused  by  the  court. 
The  third  was  to  the  effect,  in  substance,  that  if  Dickson  in- 
tentionally misrepresented  the  value  of  the  horse,  and  stated 
it  much  lower  than  it  actually  was,  for  the  purpose  of  pro- 
curing the  lower  rate,  then  plaintiff  could  only  recover  the 
value  which  he  had  fixed. 

This  court  held  it  error  to  have  refused  the  instructions 
asked,  and  said:  "We  do  not  regard  a  contract  limiting  a 
right  of  recovery  to  a  sum  expressly  agreed  upon  by  the  par- 
ties, as  representing  the  true  value  of  the  property  shipped, 
as  a  contract  in  any  way  exempting  the  carrier  from  the  con- 
sequences of  its  own  negligence.  Such  a  contract  fairly  en- 
tered into  leaves  the  carrier  responsible  for  its  negligence,  and 
simply  fixes  the  rate  of  freight,  and  liquidates  the  damages. 
This,  we  think,  it  is  competent  for  the  carrier  to  do.  And 
where  the  reduced  value  is  voluntarily  fixed  by  the  shipper 
with  a  view  of  obtaining  a  low  rate  of  freight,  without  any 
knowledge  on  the  part  of  the  carrier  that  the  property  was  of 
greater  value,  it  would  be  a  fraud  upon  the  carrier  to  permit 
the  shipper  to  recover  a  greater  sum  than  that  fixed  by 
him." 

In  the  case  now  before  us,  there  was  no  pretense  that  the 
plaintiff  or  his  agent  fraudulently  concealed  or  falsely  repre- 
sented the  real  value  of  the  mules.  They  were  delivered  with- 
out any  inquiry  or  representations  as  to  value.  They  may 
have  been  a  somewhat  choice  lot  of  mules,  but  they  were  not 
of  extraordinary  or  fanciful  value,  such  as  blooded  stock,  or 
on  account  of  speed  or  other  qualities,  as  in  the  Harvey  case, 
and  there  is  no  pretense  that  defendant  was  in  any  way  de- 
ceived as  to  their  value,  or  misled  as  to  the  degree  of  care  they 
would  require.  On  the  other  hand,  the  recital  that  the  given 
rate  was  a  reduced  rate  was  in  fact  false,  as  was  shown  by  the 
evidence  of  the  station-agent,  who  testified  it  was  the  usual 
rate  charged  all  shippers. 


728  McFadden  v.  Missouri  Pacific  R'y  Co.    [Missouri, 

If,  in  the  one  case,  it  is  competent  for  the  carrier  to  show  that 
the  real  value  of  the  property  was  concealed,  and  the  lower  rate 
thus  secured  by  the  fraud,  or  deceit  of  the  shipper,  why  may  not 
the  shipper  be  permitted  to  show  that  the  alleged  reduced  rate, 
in  consideration  of  which  he  surrendered  the  obligation  im- 
posed by  law  upon  the  carrier,  as  an  insurer  of  the  property, 
was  false,  and  in  fact  no  reduced  rate  at  all.  It  may  be  that 
plaintiff  was  not  deceived  by  it  at  the  time,  as  he  did  not  ask 
for  or  suppose  he  was  getting  a  reduced  rate,  but  if  the  pre- 
tended lower  rate  was  the  usual  rate,  and  known  to  be  such 
to  both  parties,  it  would  work  a  fraud  upon  the  rights  of  plain- 
tiff, under  the  law,  if  the  defendant  were  permitted  to  treat  it 
as  a  lower  rate,  and  to  thus  deprive  plaintiff  of  important 
rights,  and  thus  secure  release  of  part  of  its  liability  by  reason 
thereof 

Under  the  circumstances  of  this  case,  there  was,  we  think, 
no  consideration  for  the  limited  valuation  placed  upon  the 
mules  by  defendant,  and  the  stipulation  in  that  respect  is,  we 
think,  void,  as  releasing  the  carrier  from  the  full  and  reason- 
ably adequate  liability  for  its  negligence.  The  instructions 
given  for  the  plaintiff  were  in  harmony  with  these  views, 
whilst  those  refused  for  the  defendant  were  not  in  accordance 
therewith. 

Finding  no  error  in  the  record,  we  affirm  the  judgment,  and 
it  is  BO  ordered. 


CoHUON  Cakbikb  mat  bt  Exphess  OB  Spboial  Ck>NTKACr  limit  his  com- 
mon-law liability,  bat  cannot  stipulate  for  exemption  from  liability  arising 
from  his  negligence:  UUnois  etc.  R.  R.  Co.  v.  Smyaer,  87  Am.  Dec.  301;  Blu- 
menthal  v.  Brainerd,  91  Id.  349;  IlUnoia  etc  R.  R.  Co.  v.  Adams,  92  Id.  85; 
McMe  etc.  R.  R.  v.  Hopkins,  94  Id.  607;  Indianapolis  etc.  R.  R.  Co.  v.  Cox,  95 
Id.  640;  Grace  v.  Adams,  97  Id.  117,  and  notes  to  these  cases;  Orogan  v.  Ad' 
ams  Express  Co.,  60  Am.  Rep.  360,  and  cases  referred  to  in  foot-note;  see  also 
BaUimore  etc.  R.  R.  Co.  t.  Ratlibone,  88  Am.  Dec.  664,  holding  that  the  car- 
rier  may  stipulate  against  liability  for  negligence. 

Gabbier  of  Akimals  oaknot  Stifttlate  against  Nkoligenoe:  Note  to 
Clarke  v.  Rochester  etc.  R.  R.  Co.,  67  Am.  Dec.  215;  East  Tennessee  etc  R.  R. 
Co.  V.  Johnston,  51  Am.  Rep.  489;  MouUon  v.  St.  Paul  etc  R'y  Co.,  47  Id. 
781;  Kansas  City  etc.  R.  R.  Co.  v.  Simpson,  46  Id.  104. 

Carrier  in  (Consideration  of  Reduced  Rate  of  freight,  how  far  may 
Btipulate  for  limitation  of  liability  in  carriage  of  animals:  Georgia  R.  R.  v. 
Beatie,  42  Am.  Rep.  75;  Georgia  R.  R.  v.  Spears,  42  Id.  81;  South  and  Korth 
Alabama  R.  R.  Co.  v.  Henldn,  23  Id.  678;  note  to  Clarke  v.  Rochester  etc 
R.  R.  Co.,  67  Am.  Dec.  213-217. 

In  Absence  of  Fraud  or  Mistake,  contract  for  transportation  of  animals, 
■igned  by  the  shipper,  is  the  sole  evidence  of  the  a^eement,  although  it 


I 


April,  1887.]     Smith  v.  Wabash  etc.  Railway  Co.  729 

differs  from  a  previous  oral  contract,  and  the  shipper  did  not  read  it:  St. 
Louis  etc.  R.  R.  Co.  v.  Cleary,  46  Am.  Rep.  13. 

Bill  o»  Lading,  Conclusiveness  of,  as  evidence  of  the  contract  to  carry: 
OrcLce  V.  Adams,  97  Am.  Dec.  117,  and  note;  Oravea  v.  Lake  Shore  etc  B.  R. 
Co.,  50  Am.  Hep.  282;  McMiUan  v.  Michigan  etc.  R.  R.,  93  Id.  208. 


Smith  v.  Wabash,  St.  Louis,  and  Paoifio  Eail- 
WAY  Company. 

[92  MissouKi,  859.] 

Tbain  Dispatcher  Who  has  Conthol  of  the  movement  of  trains  and  en* 
gines,  and  to  whose  orders  conductors  and  engineers  are  subject,  is  not 
a  fellow-servant  with  those  actually  engaged  in  operating  suid  moving 
trains,  but  is  the  representative  of  the  company. 

Tbain  Dispatcher  being  Eepresentattve  of  the  company,  the  latter  is 
liable  for  his  negligence  causing  injury  to  an  employee  of  the  company, 
acting  under  his  orders,  whether  verbal  or  written,  as  required  by  the 
rules  of  the  company. 

Train  Dispatcher  Who,  as  Represkntativb  or  CJompant,  determines 
that  he  cannot  give  written  orders,  as  required  by  the  rules,  but  gives 
verbal  orders  to  meet  an  emergency,  such  orders  are  the  act  of  the 
company;  and  if  its  employee,  acting  under  such  orders,  is  injured 
through  the  negligence  of  the  train  dispatcher,  the  company  is  liable. 

Though  It  is  Error  to  Leave  Construction  of  Written  Rules  and 
regulations  of  railroad  company  for  the  jury,  still  such  error  will  not  be 
noticed  when  made  in  favor  of  the  party  excepting. 

In  Action  against  Railroad  Company  for  damages  sustained  through  its 
negligence,  the  jury  should  be  instructed  to  take  into  consideration  all 
the  circumstances,  and  what  are  aggravating  and  what  are  mitigating 
should  be  pointed  out;  but  a  failure  in  this  respect  is  not  error  when 
there  are  no  mitigating  circumstances  in  the  case. 

Excessive  Verdict  is  Cured  by  entering  a  remittitur  in  the  appellate  coi^t 
for  a  smaller  sum. 

Blodgett  and  Bumeltf  for  the  appellant. 

Waters  and  Wyne,  for  the  respondent. 

By  Court,  Norton,  C.  J.  This  is  an  action  to  recover  dam- 
ages for  the  killing  of  plaintiff's  husband,  alleged  to  have 
been  occasioned  by  the  negligence  of  defendant,  in  which  she 
recovered  judgment  for  five  thousand  dollars,  from  which  the 
plaintiff  has  appealed;  and,  among  others,  assigns  as  error 
the  action  of  the  court  in  refusing  to  instruct  that,  under  the 
pleadings  and  evidence,  plaintiff  was  not  entitled  to  recover. 
A  proper  disposition  of  this  question  necessitates  a  review  of 
the  evidence,  which  shows  that  freight  train  No.  84  arrived 
from  the  west,  on  the  morning  of  the  15th  of  December,  1881, 


730  Smith  v.  Wabash  etc.  Railway  Co.     [Missouri, 

at  Stanberry,  a  station  on  the  line  of  defendant's  road,  and 
the  end  of  a  division  of  said  road,  extending  from  Stanberry 
to  Omaha;  that,  upon  its  arrival,  it  was  discovered  that  the 
caboose  belonging  to  it  had  become  detached,  and  was  left 
standing  on  the  track  four  or  five  miles  west  of  Stanberry; 
that,  at  the  time  of  the  arrival  of  train  84,  another  freight 
train.  No.  85,  with  engine  No.  112  attached  to  it,  was  standing 
on  the  track  already  made  up,  and  ready  to  start  going  west. 
The  conductor  of  this  train,  James  E.  McCarty,  testified  that 
his  engine  was  No.  112;  that  Mike  Bahn  was  his  engineer  and 
deceased  his  fireman;  that  his  train  was  to  go  out;  that  he 
was  standing  by  the  train  dispatcher's  window  when  train  84 
came  in,  and  Luke  Ferriter,  train  dispatcher,  said  to  him: 
"  Jim,  you  will  have  to  take  your  engine  and  go  after  that  ca- 
boose, I  guess,  as  it  will  save  time";  that  he  asked  Ferriter 
about  orders,  and  Ferriter  said  he  couldn't  give  him  orders  as 
there  was  no  operator  at  Conception;  that  there  was  nothing 
coming  east  behind  84,  and  that  he  would  be  perfectly  safe  in 
going.  Witness  then  said:  "  I  told  him  I  would  go  down  and 
see  Mike;  that  if  Mike  would  go,  I  would  go  after  the  caboose. 
I  went  down  there  and  saw  Mike,  and  we  concluded  to  go 
after  the  caboose,  and  we  started  off  after  it  promptly,  without 
going  back  to  the  dispatcher's  ofl&ce";  that  they  found  the 
caboose  between  three  and  four  miles  west  of  Stanberry, 
coupled  on  to  it,  and  started  back,  and  had  gone  perhaps  a 
a  mile,  when  they  collided  with  the  switch-engine. 

Mr.  Bondurvant,  who  at  the  time  of  the  accident  was  yard- 
master  at  Stanberry,  testified  as  follows:  That  train  85  was 
made  up  and  on  the  track  ready  to  go  west  when  train  84 
whistled  for  Stanberry;  then,  when  84  arrived,  he  discovered 
there  was  no  caboose  on  the  train;  that,  as  the  yard  was 
blocked,  he  told  the  engineer  of  train  84  to  go  to  the  round- 
house, and  that  he  would  go  after  the  caboose,  the  engineer 
having  said  he  did  n't  think  it  was  a  great  way  back;  that 
he  went  up  to  see  the  train  dispatcher,  Mr.  Ferriter,  and  the 
latter  asked  him  if  No.  85  had  gone,  and  he  answered  "  No," 
that  they  could  n't  go  until  Burns  arrived ;  he  had  charge  of 
the  train  that  came  in  without  the  caboose;  he  then  said  to 
him:  "  Ferriter,  had  n't  we  better  go  and  get  the  caboose,  as  it 
was  lost  up  the  road  two  or  three  miles?"  that  Ferriter  asked 
him  if  112  had  gone,  and  he  answered  " No";  that  he  did  not 
ask  him  if  they  had  gone  after  the  caboose,  and  he  understood 
him  to  have  reference  to  112,  with  train  85;  that  Ferriter  then 


April,  1887.]    Smith  v.  Wabash  etc.  Railway  Co.  731 

.old  him  that  he  had  better  go  and  get  the  caboose  with  the 
switch-engine;  he  then  asked  Femter  if  he  would  need  orders, 
and  he  said  "  No,"  it  was  not  necessary  to  have  any,  that  he 
would  protect  him  while  he  was  gone,  and  would  let  nothing 
out  till  he  got  back;  he  then  went  down,  got  on  the  switch- 
engine,  and  started,  with  three  men  on  the  engine  besides  him- 
self; they  met  112  about  five  miles  west  of  Stanberry,  backing 
up  with  the  caboose;  the  two  engines  collided,  and  plaintiff's 
husband  was  killed;  that  he  did  not  notice  what  engine  was 
standing  in  the  yard  when  he  left. 

It  was  argued  that  the  rules  and  regulations  for  the  move- 
ment of  trains  and  engines,  in  force  at  the  time  of  the  acci- 
dent, and  printed  on  time-table  49,  were  known  and  understood 
by  the  conductor  and  engineer  in  charge  of  engine  112,  by  the 
yard-master  in  charge  of  the  switch-engine,  and  by  the  train 
dispatcher.  Plaintiff  also  put  in  evidence  the  following  rules, 
printed  on  said  time-table  49:  — 

"Rule  62.  The  superintendent  and  appointed  train  dis- 
patchers are  the  only  persons  authorized  to  move  trains  by 
telegraph. 

"  Rule  63.  No  wood,  construction,  or  extra  train,  or  engine, 
must  be  run  upon  the  road,  without  written  orders  or  instruc- 
tions from  persons  authorized  to  move  trains. 

"  Rule  64.  All  telegraphic  orders  for  the  movement  of  trains 
will  be  addressed  to  conductors  and  engineers.  The  operator 
receiving  such  an  order  will  read  it  aloud  to  the  conductor 
and  engineer,  and  receive  their  understanding  in  writing;  will 
repeat  it  back  to  the  dispatcher  precisely  as  sent.  If  correctly 
repeated,  the  dispatcher  will  return  the  signal,  *  0.  K.,*  which 
must  be  acknowledged  by  the  operator  by  a  like  signal,  fol- 
lowed by  his  initial  and  oflSce  call.  The  operator  will  indorse 
the  dispatcher's  0.  K.  on  the  order,  and  deliver  it  to  the  con- 
ductor and  engineer  to  whom  it  is  addressed.  In  no  case  will 
an  operator  repeat  an  order  until  he  has  first  obtained,  in  writ- 
ing, the  understanding  and  signature  of  both  conductor  and 
engineer. 

"  Rule  65.  Should  the  line,  from  any  cause,  fail  to  work, 
before  the  party  has  received  the  0.  K.,  he  will  not  deliver 
such  order." 

Defendant,  on  its  behalf,  put  in  evidence  the  following  rules, 
printed  on  time-table  49,  and  not  offered  by  plaintiff:  — 

"  Rule  13.  Always  take  the  safe  side  in  cases  of  the  least 
uncertainty. 


732  Smith  v.  Wabash  etc.  Railway  Co.     [Missouri, 

"  Rule  14.  Trains  are  to  be  run  under  the  direction  of  the 
conductor,  except  when  his  directions  conflict  with  rules  or  in- 
volve any  risk  or  hazard,  in  either  of  which  cases  all  partici- 
pators will  be  held  alike  accountable. 

"  Rule  66.  The  greatest  care  and  watchfulness  must  be  exer- 
cised in  sending  and  receiving  orders  in  regard  to  running 
trains.  Operators  will  not  trust  the  delivering  of  train  orders 
to  other  parties,  but  will  deliver  them  in  person. 

"  Rule  68.  All  orders  and  messages  relating  to  the  movement 
of  trains  must  be  written  in  full,  and  no  abbreviation  used  ex- 
cept the  telegraph  signals  *9'  (repeat  back)  and  *  13'  (I  un- 
derstand that  I  am  to )." 

The  defendant  also  introduced  as  witnesses,  on  its  behalf, 
J.  W.  Blanchard,  formerly  superintendent  of  the  Council  Bluffs 
and  Omaha  division  of  defendant's  road;  W.  I.  Durbin,  train- 
master, and  for  many  years  a  train  dispatcher  for  defendant; 
Mr.  Beggs,  a  conductor,  and  Mr.  McConnel,  a  locomotive-engi- 
neer, both  of  whom  were  in  defendant's  employ  at  the  time  of 
and  before  the  accident.  The  evidence  of  these  witnesses 
tended  to  show  that,  under  the  rules,  as  they  were  understood 
and  acted  on  by  the  employees  on  that  division,  an  engine  sent 
out  on  the  line,  beyond  the  switch  limits  of  a  station,  after  a 
caboose,  would  be  an  extra  engine,  and  only  authorized  to  go 
on  a  written  order;  that  the  running  of  irregular  extra  trains 
or  engines  was  done  only  on  written  orders,  issued  by  the  train 
dispatcher;  that  time-table  49  was  prepared  by  Thomas  Mc- 
Kissock,  general  superintendent  of  defendant's  road,  and  issued 
to  the  division  superintendents,  and  distributed  by  them  to  the 
employees  on  their  respective  divisions;  that  the  engines  in 
question,  in  their  movements  after  said  caboose,  were  extra 
engines,  and  that  under  the  rules  it  required  that  orders  for 
the  movement  of  said  engines  should  be  in  writing;  that  the 
observance  of  said  rule  would  tend  to  prevent  collisions,  and 
its  non-observance  would  be  likely  to  result  in  collisions;  that 
it  was  the  duty  of  the  employees  in  charge  of  the  engines  in 
question  to  refuse  to  go  out  upon  the  road  without  orders  in 
writing,  and  that  the  train  dispatcher  had  no  authority  to 
direct  them  to  go,  except  by  an  order  in  writing,  and  signing 
the  name  or  initials  of  the  division  superintendent  thereto; 
that  upon  receiving  the  order  in  writing  (if  one  had  been  given 
in  this  case)  it  would  have  been  the  duty  of  the  person  in 
charge  of  engine  112  to  have  gone  to  the  registry  book,  at  Stan- 
berry,  and  registered  his  engine  out.  and  when  he  returned,  to 


April,  1887.]    Smith  v.  Wabash  etc.  Railway  Co.  733 

register  it  in;  that  the  train  dispatcher  issues  his  orders  in 
three  copies,  on  manifold  paper,  one  of  which  is  delivered  to  the 
conductor,  one  to  the  engineer,  and  one  he  retains,  and  the 
order  is  recorded  in  a  book;  that  had  the  train  dispatcher 
given  a  written  order  to  the  engineer  and  conductor  of  engine 
112,  when  the  yard-master  asked  for  orders  to  go  with  the 
switch-engine,  the  train  dispatcher  would  not  have  given  him 
an  order  until  the  order  to  the  engineer  and  conductor  of  en- 
gine 112  had  been  canceled;  but  that,  had  he  made  a  mistake 
and  done  so,  the  yard-master,  when  he  came  to  register  out  the 
switch-engine,  would  have  discovered  that  engine  112  was  out 
on  the  road,  and  could  not  have  gone  until  that  engine  was 
registered  in;  that  the  accident  in  question  resulted  from  the 
non-observance  of  the  rules,  and  that  had  the  rules,  as  they 
were  understood  and  acted  upon  by  all  the  employees  on  that 
division,  been  observed,  the  accident  could  not  have  occurred. 

On  cross-examination,  Mr.  Blanchard,  division  superintend- 
ent, testified  that  Ferriter,  the  train  dispatcher,  had  power, 
under  the  rules,  to  control  the  movement  of  trains  and  en- 
gines, and  that  while  he  (Blanchard)  had  the  same  authority 
to  move  trains  that  the  dispatcher  had,  he  never  assumed  that 
authority,  but  loaded  it  on  to  the  train  dispatcher,  and  that  tho 
latter  exercised  the  entire  authority;  that  the  engineer  of  en- 
gine 113,  attached  to  freight  train  84,  could  and  should  have 
gone  back,  without  any  orders,  for  the  caboose,  if  it  could  have 
gotten  out  of  the  yards,  even  if  the  caboose  had  been  left  as  far 
back  as  twenty  miles.  On  cross-examination,  Mr.  Durbin  tes- 
tified that  when  the  yard-master  found  that  the  caboose  had 
been  left  back  on  the  road,  and  that  engine  113  could  not  get 
out  to  go  after  it,  it  was  his  duty  to  inform  the  train  dispatcher 
of  the  fact,  and  to  ask  for  orders  to  go  after  it  with  the  switch- 
engine,  and  that  it  was  the  duty  of  the  train  dispatcher  to  give 
the  orders;  that  the  train  dispatcher  should  have  kept  the 
Bwitch-engine  from  going,  if  he  knew  the  first  engine  had  gone, 
and  Blanchard  testified  that  the  train  dispatcher,  without 
much  efibrt,  could  have  ascertained  whether  the  engine  had 
gone.  Tho  train-master  further  testified,  among  other  things, 
that  the  first  fault  was  the  train  dispatcher's,  in  giving  a  verbal 
order,  and  the  other  fault  was  of  the  engineer,  in  obeying  it. 

It  is  insisted  by  counsel  that  tho  facts  in  evidence,  which 
are  substantially  as  above  set  forth,  show  that  the  death  of 
plaintiff's  husband  was  occasioned  by  the  negligence  of  his 
fellow-servants,  and  that  therefore  the  court  erred  in  overrul- 


734  Smith  v.  Wabash  etc.  Railway  Co.     [Missouri, 

ing  the  demurrer  to  the  evidence.  If  the  train  dispatcher, 
yard-master,  engineer,  and  firemen  of  engine  112  were  fellow- 
servants,  then  error  was  committed  by  the  court  in  the  above 
respect;  but  if  the  train  dispatcher  was  not  a  fellow-servant, 
but  the  representative  of  the  company,  in  regard  to  the  move- 
ment of  trains  on  the  division  referred  to  in  the  evidence,  and 
his  negligence  was  the  proximate  cause  of  the  injury,  the  de- 
murrer was  properly  overruled.  It  clearly  appears  from  the 
evidence  that  the  train  dispatcher  at  Stanberry  had  the  sole 
and  exclusive  control  in  directing  the  movement  of  trains  on 
the  division  of  defendant's  road  extending  from  Stanberry  to 
Omaha,  and  that  the  conductors  and  engineers  were  subject  to 
them  when  issued. 

The  authorities  bearing  upon  the  question  as  to  whether  or 
not  a  train  dispatcher,  invested  with  such  control,  is  a  fellow- 
servant  with  the  conductor  and  engineer,  and  others  engaged 
in  actually  operating  and  moving  trains,  are  conflicting  and 
irreconcilable.  The  rule  laid  down  in  Massachusetts,  and 
cases  cited  from  other  states,  where  it  is  held  that  all  who  are 
engaged  in  a  common  employment,  working  to  accomplish  a 
common  result,  without  regard  to  rank,  are  to  be  regarded  as 
fellow-servants,  supports  defendant's  contention.  While  this 
court  has  held  that  where  one  servant  is  injured  by  the  negli- 
gence of  a  fellow-servant  no  action  therefor  can  be  maintained 
against  the  master  only  in  exceptional  cases  (such  as  when 
the  servant  employed  was  incompetent,  which  was  either 
known,  or  might  with  ordinary  care  have  been  known,  by  the 
master),  we  have  never  gone  so  far  as  to  adopt  a  rule  by  which 
to  determine  who  are  fellow-servants  so  broad  as  that  adopted 
in  Massachusetts,  nor  are  we  disposed  to  do  so  now. 

The  tendency  of  recent  decisions  is  to  narrow,  and  not  to 
broaden,  the  rule;  notably  so  in  the  case  of  Chicago  etc.  Rail- 
road V.  Ross  J  112  U.  S.  390,  where  it  is  said:  "  There  is  a  clear 
distinction  to  be  made,  in  relation  to  their  common  principal, 
between  the  servants  of  a  corporation  exercising  no  super- 
vision over  others  engaged  with  them  in  the  same  employ- 
ment, and  agents  of  a  corporation  clothed  with  the  control 
and  management  of  a  distinct  department,  in  which  their 
duty  is  entirely  that  of  direction  and  superintendence."  In 
Sheehan  v.  Railroad,  91  N.  Y.  332,  and  Chicago,  B.,  &  Q. 
Railroad  v.  McLallen,  84  111.  109,  the  superintendent  and 
assistant  superintendent,  acting  as  train  dispatchers,  were  held 
to  be  vice-principals.     In  the  case  last  cited  it  is  said  that,  as 


April,  1887.]    Smith  v.  Wabash  etc.  Railway  Co.  735 

between  the  conductor  and  the  company,  the  assistant  Buperin- 
tendent,  to  whose  orders  the  trains  are  all  subject,  is  the 
representative  of  the  corporation,  and  that  the  rule  applies 
as  well  to  all  orders'  issued  by  his  assistants  and  in  his 
name. 

That  a  train  dispatcher  is  to  be  regarded  as  the  representa- 
tive of  the  company  is,  in  effect,  held  in  the  following  cases: 
Booth  V.  Railroad^  73  N.  Y.  38;  29  Am.  Rep.  97;  Railroad  v. 
Henderson^  37  Ohio  St.  552;  Washburn  v.  Railroad,  3  Head, 
638;  75  Am.  Dec.  784;  Darrigen  v.  Railroad,  24  Am.  Law 
Reg.  453.  In  the  case  last  cited  it  is  said:  "  It  is  imma- 
terial  that  these  men  are  hired  and  paid  by  a  common  em- 
ployer, and  that  their  employment  is  designed  to  accomplish 
one  common  result.  That  argument,  if  pressed  to  its  logical 
conclusion,  would  obliterate  all  distinctions  among  those  en- 
gaged in  railroad  business,  from  the  president  down  to  the 
humblest  servant,  and  would  practically  exempt  the  company 
from  all  duty,  and  all  liability,  to  those  in  its  service."  It  is 
previously  said  that  "  cases  are  constantly  arising,  especially 
in  the  operation  of  railroads,  which  no  general  rule  can  pro- 
vide for,  in  which  the  master  must  be  regarded  as  construct- 
ively present,  in  which  some  one  must  be  invested  with  a  dis- 
cretion and  a  right  to  speak  and  command  in  his  name  and 
by  his  authority.  Such  a  right  carries  with  it  the  correspond- 
ing duty  of  obedience, — some  one  must  hear  and  obey 

It  [the  railroad  company]  must  also  devise  some  suitable  and 
safe  method  by  which  to  run  special  and  irregular  trains,  and 

regular  trains  when  off  their  regular  time Emergencies 

will  arise  which  no  system  of  rules  can  anticipate  and  provide 
for,  in  which  the  company  must  act  promptly  and  efficiently." 
In  this  case,  the  scheme  devised  was  to  have  these  trains  con- 
trolled by  one  who  knew  the  position  and  movement  of  every 
train  on  the  road  liable  to  be  affected  by  them,  a  train  dis- 
patcher, acting  in  the  name  and  by  the  authority  of  the 
superintendent.  Is  there  not  a  wide  difference  between  the 
duty  of  such  an  agent  and  the  duty  of  a  locomotive-engi- 
neer? The  duty  of  the  former  pertains  to  management  and 
direction;  that  of  the  latter  to  obedience. 

What  is  here  said  applies  to  the  facts  of  the  case  before  us, 
which  shows  that  when  freight  train  84  arrived  at  Stanberry 
from  the  west,  freight  train  85  stood  on  the  track  ready  to  go 
out  west,  the  direction  from  which  84  had  just  come,  but 
could  not  go  out  because  84  had  left  its  caboose  back  some 


736  Smith  v.  Wabash  etc.  Railway  Co.     [Missouri, 

four  or  five  miles  on  the  track,  between  Stanberry  and  Con- 
ception, a  station  on  the  road. 

The  evidence  is  undisputed  that  the  engineer  of  the  engine 
which  pulled  84  into  the  yard  had  the  right,  and  it  was  his 
duty,  to  take  his  engine,  and  without  orders,  either  verbal  or 
written,  to  go  back,  if  for  the  distance  of  twenty  miles,  and 
bring  in  the  caboose;  but  owing  to  the  crowded  condition  of 
the  yard,  he  could  not  get  his  engine  out,  and  he  was  ordered 
by  the  yard-master  to  take  it  to  the  round-house.  In  this  con- 
dition of  things,  the  train  dispatcher  directed  McCarty,  con- 
ductor, to  take  engine  number  112,  which  was  hitched  to 
freight  train  85,  and  bring  in  the  caboose,  saying  "  he  could 
not  give  him  written  orders  because  there  was  no  operator  at 
Conception,  but  that  he  would  be  perfectly  safe  in  going,  as 
there  was  no  train  coming  east";  whereupon  he  was  informed 
by  McCarty  that  he  would  see  his  engineer,  and  if  he  con- 
sented they  would  go.  He  did  go,  and  from  the  very  fact  of 
his  not  returning  to  the  train  dispatcher,  that  oflBcer  could 
have  drawn  no  other  inference  than  that  he  had  gone,  and 
this  inference  could  have  been  reduced  to  a  certainty  had  he 
looked  to  ascertain  the  fact  as  to  whether  or  not  he  had  gone; 
but  instead  of  this,  with  full  knowledge  of  the  fact  that  Mc- 
Carty left  telling  him  that  he  would  go  if  his  engineer  would, 
with  an  assurance  from  his  dispatcher  that  it  would  be  per- 
fectly safe  for  him  to  go,  he  directed  the  yard-master  to  take 
his  switch-engine  and  bring  in  the  caboose,  promising  to  pro- 
tect him  while  he  was  gone,  without  informing  him  that  he 
had  previously  directed  McCarty  to  go  with  engine  112,  and 
without  taking  any  steps  to  ascertain  whether  he  had  gone, 
which  fact  he  could  have  ascertained  by  taking  a  few  steps 
and  simply  looking,  and  it  was  this  negligence  that  cost  the 
fireman  on  engine  112  his  life. 

But  it  is  earnestly  insisted  that,  inasmuch  as  rule  26  for- 
bade an  extra  engine  from  going  out  without  written  orders, 
McCarty  was  negligent  in  refusing  to  go  without  them.  If 
the  train  dispatcher  was  the  representative  of  the  company  in 
ordering  the  movement  of  trains,  as  we  hold  he  was,  then, 
under  the  emergency  and  condition  of  things  existing  when 
he  determined  that  he  could  not  give  written  orders,  it  was 
the  determination  of  the  company,  and  when  he  gave  the 
orders  verbally,  as  he  did  to  meet  the  emergency,  it  was  the 
company  speaking.  If  the  engineer  who  pulled  train  84  into 
Stanberry  had  informed  the  train  dispatcher  that  his  caboose 


April,  1887.]     Smith  v.  Wabash  etc.  Railway  Co.  737 

had  been  left  behind,  and  that  he  could  not  get  out  of  the 
yard  with  his  engine  to  go  after  it,  and  had  procured  the  use 
of  engine  112,  attached  to  train  85,  for  the  purpose  of  going, 
and  had  gone  after  it,  and  had  the  train  dispatcher  afterwards 
instructed  the  yard-master  to  take  his  engine  and  go,  and  the 
accident  occurred  as  it  did,  could  there  be  any  question  as  to 
the  liability  of  the  company?    We  think  not. 

Upon  the  point  under  discussion,  the  case  of  Moore  v.  Rail- 
road, 85  Mo.  588,  has  a  direct  bearing.  In  that  case  it  ap- 
peared that  the  company  had  established  a  rule  requiring  all 
car  repairers,  when  engaged  in  repairing  cars,  to  set  out  red 
flags  on  each  side  of  the  place  where  they  were  at  work,  as 
signals  of  warning  to  approaching  trains.  Notwithstanding 
this  rule,  the  foreman  of  car  repairs  directed  the  plaintiff, 
without  any  flags  being  set  out  as  required  by  said  rule,  to 
repair  the  drawhead  of  a  car,  promising  to  protect  him  while 
BO  engaged,  and  an  engine  ran  against  the  car,  severely  injur- 
ing him,  the  company  was  held  liable,  on  the  ground  that  the 
foreman  was  the  aliter  ego  of  the  company,  and  his  promise  of 
protection  was  binding,  although  the  rule  provided  to  secure 
the  safety  of  the  men  had  not  been  observed,  but  dispensed 
with. 

It  is  next  objected  that  the  court  erred  in  the  second  and 
third  instructions  given  for  plaintiff,  in  that  the  jury  were 
told  that  if  they  found  from  the  evidence  that  Ferriter  was 
train  dispatcher,  and  under  the  rules  and  regulations  of  de- 
fendant he  had  control  of  the  movement  of  trains  and  extra 
engines,  and  if  under  said  rules  and  regulations  he  had  con- 
trol of  the  two  engines  in  question,  so  far  as  running  them  on 
the  road  was  concerned,  and  if  under  said  rules  and  regula- 
tions, and  by  reason  of  them,  said  employees  were  subject 
to  the  orders  and  instructions  of  said  train  dispatcher,  in 
relation  to  the  running  of  said  engines,  then  said  train  dis- 
patcher was  not  a  fellow-servant  of  the  engineer.  The  specific 
objection  made  to  these  instructions  is,  that  it  was  the  duty  of 
the  court  to  construe  the  rules  and  regulations  read  in  evi- 
dence, and  that  it  was  error  to  leave  the  construction  of  them 
to  the  jury. 

This  position  is  well  taken,  and  error  was  committed  in  the 
respect  above  noted,  but  the  error  was  one  in  favor  of  defend- 
ant and  against  the  plaintiff,  inasmuch  as  the  rules  admitted 
of  but  one  construction,  as  to  the  fact  that  the  train  dispatcher 
had  control  of  the  movement  of  trains  and  engines,  and  con- 

JkM.  St.  Rip..  Vol.  I.  —  47 


738  Smith  v.  Wabash  etc.  Railway  Co.     [Missouri, 

trol  of  the  engines  in  question,  as  to  running  them  on  the  road, 
and  subjecting  the  employees  to  his  orders  and  instructions; 
and  had  the  court  construed  the  rules,  it  could  only  have  told 
the  jury  that  under  them  the  train  dispatcher  had  such  con- 
trol, and  that  the  employees  were  subject  to  his  orders. 

It  is  also  insisted  that  the  court  erred  in  the  instruction 
given  in  relation  to  damages,  in  this,  that  the  jury  were  told 
that  they  might  take  into  consideration  the  mitigating  and 
aggravating  circumstances,  without  pointing  out  to  them  what 
circumstances  were  aggravating  and  what  mitigating.  While 
it  is  held  in  the  case  of  Rains  v.  Railroad,  71  Mo.  169,  36  Am. 
Rep.  459,  that  the  court  in  its  instruction  should  point  out 
such  circumstances,  it  is  also  said  in  the  case  of  Nagle  v.  Rail- 
road, 75  Mo.  653,  42  Am.  Rep.  418,  that  where  there  are  no 
mitigating  circumstances  the  defendant  cannot  complain  of 
such  an  instruction  because  of  its  generality.  In  this  case, 
we  do  not  perceive  a  single  mitigating  circumstance,  but  on 
the  contrary,  the  grossest  negligence  of  the  train  dispatcher  in 
sending  out  the  second  engine  under  the  circumstances  dis- 
closed by  the  evidence. 

It  is  also  insisted  that,  under  the  facts  found,  plaintiflf  was 
only  entitled  to  nominal  damages.  The  evidence  is,  that  the 
deceased  was  the  head  of  a  family,  thirty-nine  years  of  age, 
able  to  perform  the  duties  of  fireman,  and  was  so  engaged 
when  killed,  and  was  always  at  work.  These  facts  formed  a 
basis  on  which  the  jury  were  authorized  to  find  more  than 
nominal  damages. 

As  to  the  claim  made  that  the  verdict  for  five  thousand  dol- 
lars was  excessive,  it  may  be  said  that  it  is  suflSciently  an- 
swered by  the  action  of  plaintifi"  in  entering  a  remittitur  in  this 
court  for  the  sum  of  fifieen  hundred  dollars. 

It  is  alleged  in  the  petition  that  "  the  train  dispatcher  gave 
an  order  which,  under  the  rules  and  regulations  of  the  com- 
pany, the  men  were  bound  to  obey,"  and  it  is  contended  that 
this  allegation  was  not  proved,  inasmuch  as  the  order  given 
was  a  verbal  and  not  a  written  order.  The  company,  through 
its  train  dispatcher,  determined  that,  under  the  existing  cir- 
cumstances, a  written  order  could  not  be  given;  and  having 
thus  determined,  gave  a  verbal  order,  which,  emanating  from 
the  company  through  its  representative,  the  train  dispatcher, 
was  obligatory. 

Inasmuch  as  the  entry  of  a  remittitur  in  this  court  by  plain- 
tiff, of  the  sum  of  fifteen  hundred  dollars,  is  to  that  extent  an 


April,  1887.]     Lancaster  v.  Connecticut  etc.  Ins.  Co.      739 

admission  that  the  point  made  by  defendant,  that  the  judg- 
ment for  five  thousand  dollars  is  excessive,  is  well  taken,  on 
the  authority  of  the  case  of  Miller  v.  Hardin^  64  Mo.  545,  the 
judgment  of  the  circuit  court  is  in  all  respects  affirmed,  ex- 
cept as  to  said  sum  of  fifteen  hundred  dollars,  which  is  re- 
mitted, and  to  be  deducted  from  the  said  sum  of  five  thousand 
dollars;  and  plaintiff  and  appellee  is  required  to  pay  all  costs 
of  this  appeal,  which  are  adjudged  by  this  court  against  her. 

Sherwood,  J.,  dissented. 

Railway  Train  Disfatoheb  and  LoooMonvB-sNoiNESB  are  not  fellowo 
servants:  Darrigan  v.  New  York  etc  R.  R.  Co.,  52  Am.  Rep.  690. 

Who  abb  Fellow-servants  and  Liabiutt  ot  Master  for  the  negligence 
of  one  servant  who  haa  control  of  another:  Note  to  Fox  v.  Sainford,  67  Am. 
Dec.  690-596. 

Error  in  Instruction  Favorable  to  Appellant  ia  not  gronnd  for  re- 
versal of  the  judgment:  Wmtz  v.  Morrison,  67  Am.  Dec.  668,  and  note  664; 
Samper  v.  Clucago  etc  R'y  Co.,  99  Id.  49,  and  note. 


Lancaster  v.  Conneotiout  Mutual  Life  Insub- 
ANOE  Company. 

[92  MissouBi,  460.J 

Pabtt  13  NOT  Relieved  from  Liability  for  Injuries  Resulting  from 
Fall  of  Wall,  on  the  ground  that  it  was  constructed  by  an  indepen- 
dent contractor,  if  the  defect  in  the  wall  arose  from  the  plans  and  speciB- 
cations  adopted  by  such  party,  and  not  from  negligence  of  the  contractor 
in  carrying  out  such  plans  and  specifications. 

Provision  in  Building  Ck)NTRACT  that  the  work  shall  be  done  in  a  good 
and  workmanlike  manner  relates  to  the  things  specified  to  be  done,  and 
does  not  impose  on  the  builder  the  duty  of  doing  acts  or  taking  preoau- 
tions  which  ought  to  have  been,  but  were  not,  provided  for  in  the  plans 
and  specifications. 

Bight  to  Sue  for  Damages  to  Real  Estate  is  not  destroyed  nor  assigned 
by  a  subsequent  conveyance  of  such  real  property. 

Same  Cause  of  Action  may  be  Stated  in  Different  Counts;  in  which 
case,  there  need  be  but  one  finding  or  verdict.  A  nominal  verdict  for 
plaintiff  on  one  count,  and  a  substantial  verdict  for  him  on  the  other, 
shows  that  the  jurors  intended  to  award  damages  under  the  latter  only; 
and  the  judgment  cannot  be  arrested  on  the  ground  that  there  are  two 
verdicts  for  the  same  cause  of  action. 

Dyer,  Lee,  and  ElliSf  for  the'  appellant. 
Broadhead  and  Haeussler^  for  the  respondent. 


740  Lancaster  v.  Connecticut  etc.  Ins.  Co.     [Missouri, 

By  Court,  Black,  J.  The  plaintiff  and  the  defendant  owned 
adjoining  lots  fronting  on  Fourth  Street,  in  the  city  of  St. 
Louis,  extending  hack  to  an  alley.  There  was  a  five-story 
brick  building  upon  each  lot,  the  wall  between  them  being  a 
party-wall.  The  first  count  of  the  petition,  in  substance, 
states  that  in  September,  1881,  the  defendant  erected  upon 
its  property  a  brick  wall,  so  as  to  abut  against  the  party-wall; 
that  the  same  was  carried  to  a  great  height;  that  the  de- 
fendant negligently  caused  the  wall  to  be  erected  in  such  an 
insecure  and  defective  manner,  and  with  such  insuflBicient 
foundation  and  supports,  that  the  supports  gave  way,  and  the 
wall  fell  upon  plaintiff's  building,  crushing  it,  to  the  damage, 
etc.  The  second  count  states  that  the  defendant  erected  the 
new  wall  in  such  a  manner  as  to  bear  with  great  weight  upon 
a  girder,  which  was  negligently  inserted  into  the  party-wall 
without  providing  a  suflBcient  foundation  or  supports  therefor; 
and  that  defendant  negligently  omitted  to  employ  competent 
and  skilled  men  to  superintend  and  construct  the  wall  and 
other  alterations  of  the  old  building.  In  other  respects  this 
count  is  the  same  as  the  first. 

The  defendant's  property  is  known  as  the  old  St.  Nicholas 
Hotel,  and  the  plaintiff's,  which  is  to  the  south  of  the  other, 
is  known  as  the  Nelson  House.  Plaintiff's  building  extended 
from  the  street  on  the  east  to  the  alley  on  the  west,  and  the 
St.  Nicholas  Hotel  building  extended  west  to  within  some 
thirty-five  feet  of  the  alley.  It  is  shown  that  the  greater  por- 
tion of  the  party-wall  between  the  St.  Nicholas  and  the  alley 
was  in  a  bad  condition,  was  cracked,  and  the  bricks  in  places 
were  well  rotted  from  heat  and  moisture,  from  a  laundry  at- 
tached to  the  St.  Nicholas.  The  condition  of  this  portion  of 
the  party-wall  was  well  known  to  both  parties.  The  defend- 
ant determined  to  convert  the  St.  Nicholas  Hotel  into  store- 
rooms, and  to  that  end  entered  into  a  written  contract,  plans, 
and  specifications  with  Messrs.  Barnes  and  Morrison,  con- 
tractors and  builders.  It  appears  that  the  plans  and  speci- 
fications were  prepared  by  the  contractors,  but  it  is  equally 
clear  that  they  were  approved  by  the  defendant  at  the  home 
oflSce,  and  were  approved  and  signed  by  the  defendant's  agents, 
Messrs.  Budd  and  Wade,  at  St.  Louis.  In  the  execution  of 
the  contract  according  to  the  plans,  it  became  necessary  for 
the  contractors  to  remove  the  rear  wall  of  the  St.  Nicholas 
Hotel,  and  place  it  some  six  or  eight  feet  towards  the.  alley, — 
twenty-five  feet  east  of  the  alley.    This  new  wall  rested  upon 


April,  1887.]     Lancaster  v.  Connecticut  etc.  Ins.  Co.      741 

a  girder,  and  extended  to  a  height  of  four  stories  above  the 
ceiling  of  the  first  story.  The  north  end  of  the  girder  was 
supported  by  the  defendant's  north  wall,  and  the  south  end 
was  inserted  in  the  party-wall.  The  girder  was  of  two  pieces 
joined  at  the  center,  and  there  supported  by  an  iron  column. 
After  the  new  wall  had  been  built,  or  nearly  completed,  it  and 
the  rear  wall  of  the  plaintiff's  house  fell  down. 

There  is  much  evidence  to  the  effect  that  the  party-wall,  at 
the  place  where  the  new  one  joined  it,  was  weak,  to  the  knowl- 
edge of  the  defendant's  agents,  and  that  the  only  safe  way  to 
build  the  new  wall  was  either  to  place  a  pillar  or  abutment 
next  to  the  party-wall,  and  let  the  girder  rest  on  that,  or  to 
firmly  anchor  both  ends  of  the  new  wall  into  the  side  walls, 
and  that  neither  was  done.  There  is  evidence  to  the  effect 
that  by  building  an  abutment,  or  placing  a.  pillar  of  iron  at 
the  party-wall,  there  would  have  been  no  danger.  On  the 
other  hand,  there  is  evidence  tending  to  show  that  a  pillar  or 
abutment  was  not  necessary;  that  the  party- wall  at  the  point 
of  juncture  was  sound  and  safe;  that  the  party-wall  next  to 
the  alley  fell  from  its  inherent  weakness,  dragging  with  it  the 
new  wall,  and  other  portions  of  the  party-wall,  to  a  point  eight 
or  ten  feet  beyond  the  place  where  the  two  walls  joined. 

The  jury  returned  the  following  verdict:  "We,  the  jury, 
find  for  the  plaintiffs  on  the  first  count,  and  assess  their  dam- 
ages at  one  dollar.  We,  the  jury,  find  for  the  plaintiffs  on  the 
Becond  count  in  the  petition,  and  assess  their  damages  at  the 
sum  of  four  thousand  nine  hundred  dollars." 

1.  A  question  made  by  the  appellant  is,  that  Barnes  and 
Morrison  were  independent  contractors,  and  they,  and  not  the 
defendant,  are  liable  for  the  injuries  resulting  to  the  plaintiff's 
house.  If  the  negligence  which  produced  the  injury  was  not 
in  the  workmanship,  or  the  materials  to  be  furnished  by  the 
contractors,  but  in  the  plans  and  specifications,  then  the  de- 
fendant cannot  be  relieved  from  liability,  or  shift  the  respon- 
sibility to  the  contractors:  Homer  v.  Nicholson^  56  Mo.  220; 
Morgan  v.  Bowman,  22  Id.  538.  It  was  the  duty  of  the  de- 
fendant to  use  all  reasonable  care  and  caution  in  providing 
plans  and  specifications,  to  the  end  that  a  building,  when  con- 
structed in  accordance  with  them,  would  not  be  dangerous  to 
the  plaintiff's  property.  The  instructions  for  plaintiff  are  in 
entire  accord  with  what  has  been  said,  for  they  proceed  upon 
the  theory  that  the  plaintiff  could  recover,  though  Barnes  and 
Morrison  were  independent  contractors,  provided  the  injury 


742  Lancaster  v.  Connecticut  etc.  Ins.  Co.     [Missouri, 

arose  from  and  was  occasioned  by  the  use  of  defective  plans. 
But  it  is  contended,  on  the  other  hand,  and  correctly  too,  that 
if  the  plans  and  specifications  were  in  themselves  suflScient  to 
secure  a  safe  construction  of  the  work,  and  that  the  work  was 
insufficiently  done  by  independent  contractors,  then  the  de- 
fendant should  not  be  held  liable.  This  principle  of  law  is 
incorporated  in  an  instruction  given  at  the  request  of  the  de- 
fendant. 

It  is,  no  doubt,  the  duty  of  the  court  to  construe  written 
contracts,  and  in  view  of  this,  it  is  earnestly  contended  that 
the  court  erred  in  refusing  to  give  the  following  instruction, 
asked  by  the  defendant: — 

"  5.  The  court  instructs  the  jury  that,  under  the  contract, 
plans,  and  specifications  read  in  evidence  in  this  cause,  it  was 
the  duty  of  the  contractors,  Barnes  and  Morrison,  to  erect,  in  a 
good  and  substantial  manner,  the  improvements  in  said  con- 
tract, plans,  and  specifications  named,  and  to  this  end  it  was 
not  necessary  to  insert  in  the  plans,  specifications,  and  contract 
the  manner  in  which  the  wall  to  be  erected  on  property  of 
defendant  was  to  be  supported." 

The  purpose  of  this  instruction  would  seem  to  be  to  throw 
the  duty  of  placing  supports  under  the  girder  on  the  con- 
tractors, though  not  specified,  and  this  on  the  ground  that  the 
'Contract  required  them  to  do  the  work  in  a  good,  workmanlike 
manner.  The  contract  is  general  in  its  terms,  and  refers  to 
the  specifications.  The  specifications  provide,  in  detail,  for 
the  various  kind  of  work,  including  the  iron,  stone,  and  brick 
work.  Among  other  things,  they  provide  that  "  the  partitions, 
walls,  archways,  stairs,  etc.,  that  conflict  with  the  plans,  are 
to  be  taken  down  or  filled  up  as  may  be  required";  and  in 
speaking  of  the  brick-work,  that  "  the  old  work  to  be  joined 
on  the  new  in  the  very  best  manner,  and  anchored  where 
directed."  Although  the  specifications  deal  with  details,  there 
is  nothing  said  with  respect  to  a  support  at  the  party-wall, 
upon  which  that  end  of  the  girder  should  rest.  We  do  not 
understand  that  anything  of  the  kind  is  shown  on  the  draw- 
ing. It  is  clear  that  a  pier  or  pillar  at  the  party-wall,  to 
support  the  girder,  was  not  contemplated  by  the  contract. 
Where  it  is  provided  that  the  work  shall  be  done  in  a  good 
and  workmanlike  manner,  or  in  the  very  best  manner,  those 
words  must  relate  to  the  things  specified  to  be  done.  The 
claim  made  by  the  appellant,  that  the  words  "  as  may  be  re- 
quired "  and  "  where  directed,"  mean  required  and  directed 


April,  1887.]     L.^^caster  v.  Connecticut  etc.  Ins.  Co.      743 

by  Barnes  and  Morrison,  cannot  be  sustained;  such  a  reading 
of  them  is  at  war  with  the  very  object  and  purpose  of  the  con- 
tract. It  makes  the  contractors  do,  and  only  do  in  the  respects 
mentioned,  what  they  may  require  themselves  to  do.  The 
directions  are  to  be  given  by  the  defendant  or  its  agents.  No 
other  construction  can,  in  reason,  be  given  to  them.  Again, 
these  words  apply  to  matters  of  detail,  and  in  no  event  can  they 
be  construed  to  require  the  contractors  to  erect  a  pier,  or  place 
an  iron  column  under  the  end  of  the  girder.  The  instruction 
attempts  to  give  to  the  contract  a  construction  which  it  will 
not  bear,  and  was  properly  refused. 

2.  The  court  gave  an  instruction,  at  the  request  of  the  de- 
fendant, which,  after  stating  that  the  plaintifif  makes  no  claim 
for  damages,  except  such  as  were  occasioned  by  the  falling  of 
the  wall  built  by  the  defendant,  concludes  as  follows:  "The 
plaintiff  cannot  recover  in  this  action,  unless  she  has  proved 
to  the  satisfaction  of  the  jury  that  said  abutting  wall  fell  be- 
fore said  party-wall."  The  claim  here  is,  that  the  evidence 
all  shows  that  the  party-wall  fell  first,  and  that  the  jury  dis- 
regarded the  instruction.  Both  counts  do  conclude  with  the 
statement  that  the  defendant's  wall  fell  upon  the  plaintiff's 
house,  crushing  it,  etc.;  but  the  grievance  complained  of  is, 
that  defendant  failed  to  place  supports  under  the  girder,  by 
reason  of  which  the  party-wall  gave  way.  If  the  party-wall 
yielded  to  the  weight  upon  it,  and  caused  both  walls  to  fall, 
we  do  not  see  how  it  is  material  which  came  to  the  ground 
first.  The  instruction  may  be,  in  a  sense,  misleading,  but  the 
defendant  cannot  be  heard  to  complain  of  such  an  error, 
brought  about  at  its  own  request. 

3.  After  the  damages  had  accrued,  and  shortly  before  the 
commencement  of  this  suit,  the  trustee  sold  the  property;  but 
it  is  not  claimed  that  there  was  any  assignment  of  the  dam- 
ages to  the  purchaser  or  any  one  else.  Mr.  Lancaster,  the 
trustee,  held  the  property  in  trust  to  apply  the  rents  and  in- 
come to  the  solo  and  separate  use  of  Mrs.  Nelson,  a  married 
woman,  with  power  to  sell  the  property.  The  property  had 
been  rented,  the  tenants  accounting  to  the  trustee,  and  he  to 
Mrs.  Nelson.  It  is  true  that,  upon  the  sale  of  the  property, 
the  trustee's  dominion  over  it  ceased,  but  his  right  and  power 
lo  collect  the  damages  remained  unaffected  by  the  sale.  He 
certainly  would  have  been  required  to  discharge  any  debt  pre- 
viously contracted  in  respect  of  the  property,  and  might  have 


744  Lancaster  v.  Connecticut  etc.  Ins.  Co.     [Missouri^ 

collected  any  unpaid  rents,  notwithstanding  the  sale;  and  in 
like  manner,  he  may  prosecute  this  suit. 

4.  Finally,  it  is  insisted  that  the  judgment  should  have 
been  arrested,  because  there  are  two  verdicts  for  the  same 
cause  of  action.  It  is  now  settled  in  this  state  that,  under  our 
code,  the  plaintiff  may  state  the  same  cause  of  action  in  dif- 
ferent counts  of  the  petition:  Brinkman  v.  Hunter,  73  Mo.  172. 
Where  there  are  separate  and  distinct  causes  of  action  joined 
in  the  same  suit,  but  stated  in  separate  counts,  as  they  should 
be,  there  should  be  a  separate  finding  upon  each  count: 
Bricher  v.  Railroad,  83  Id,  391.  But  where  there  is  but  one 
cause  of  action,  though  stated  in  different  counts,  there  need 
be  but  one  finding  or  verdict.  The  verdict,  in  such  cases, 
may  be  general.  It  need  not  mention  either  count:  Brownell 
v.  Railroad,  47  Id.  240;  Brady  v.  Connelly,  52  Id.  19;  Owen  v. 
Railroad,  58  Id.  394.  As  stated  in  the  case  last  cited,  a  finding 
upon  any  one  count  would  be  a  bar  to  a  recovery  on  the  other 
counts,  —  upon  any  of  the  counts.  Regularly,  there  should 
have  been  either  a  general  verdict,  or  a  verdict  upon  one  of 
the  counts.  A  verdict  upon  one  count  for  plaintiff,  and  a 
finding  for  the  defendant  on  the  other,  would  also  have  been 
proper  enough.  In  this  case,  the  verdict  on  the  first  count  is 
but  for  one  dollar,  —  a  nominal  finding  for  plaintiff.  Practi- 
cally, it  is  a  finding  for  defendant  on  that  count.  There  can 
be  no  possible  doubt  but  the  jurors  intended  to  award  sub- 
stantial damages;  and  this  they  did  do  on  the  second  count. 
That  verdict  is  supported  by  abundant  evidence  on  fair  in- 
structions, and  there  is  no  such  error  as  to  materially  affect 
the  merits  of  the  action,  in  view  of  the  fact  that  the  plaintiff 
has  remitted  one  dollar  in  this  court. 

The  remittitur  will  be  entered,  and  the  judgment  aflBrmed,. 
for  four  thousand  nine  himdred  dollars,  to  bear  interest  from 
date  of  the  judgment  in  the  circuit  court.  The  costs  of  this 
appeal,  in  this  court  and  the  court  of  appeals,  will  be  taxed  ta 
respondent. 


I 


Acts  fob  Which  Dependant  is  not  Answekablb  because  Done  by  Con- 
tractor: See  Waiashy  St.  L.,  <fe  Pac  R'y  v.  Farver,  60  -Am,  Rep.  696,  and  casea 
there  cited;  Bonoell  v.  Laird,  68  Am.  Dec.  345,  and  note;  Stone  v.  Chuhirt: 
B.  B.,  51  Id.  192,  and  note  200-206. 


April,  1887.]  Crawford  v.  Spencer.  745 

Crawford  v.  Spencer. 

[92  Missouri,  4J8.J 

Sals  or  Goods  to  bs  Delivered  in  Future  is  valid,  though  there  is  aa 
option  as  to  the  time  of  delivery,  and  the  seller  has  no  means  of  getting 
*  them  but  to  go  into  the  market  and  buy.  But  if,  under  guise  of  such 
contract,  valid  on  its  face,  the  real  purpose  auid  intention  is  merely  to 
speculate  in  the  rise  or  fall  of  prices,  and  the  goods  are  not  to  be  deliv- 
ered, but  the  difference  between  the  contract  and  the  market  price  only 
paid,  the  transaction  is  a  wager,  and  the  contract  void. 

To  Render  Contract  for  Sale  op  Goods  to  be  delivered  iu  future  void 
as  a  wagering  contract,  it  is  not  enough  that  one  party  only  intended  a 
■peculation  in  prices;  it  must  be  shown  that  both  parties  did  not  intend 
a  delivery  of  the  subject-matter,  but  contemplated  and  intended  only  a 
settlement  of  the  diflference  between  the  contract  and  the  market  price. 

Broker  may  Negotiate  Contract  for  Sale  of  goods  to  be  delivered  in 
future,  without  being  privy  to  an  illegal  intent  of  the  principals,  render* 
ing  it  void;  and  being  innocent,  he  has  a  meritorious  ground  for  the  re- 
covery of  compensation  for  services  and  advances. 

When  Broker  is  Privy  to  Unlawful  Design  of  Parties  to  a  contract 
for  the  sale  of  goods,  to  be  delivered  in  future,  and  brings  them  together 
for  the  purpose  of  entering  into  the  illegal  agreement,  he  is  particepa 
criminis,  and  cannot  recover  for  services  rendered  or  losses  incurred  by 
himself  on  behalf  of  either  in  forwarding  the  transaction. 

Wagering  Contract  for  Future  Sales  is  nob  within  the  provisions  of  the 
Missouri  criminal  statutes,  making  gambling  notes  void  in  the  hands  of 
the  holder;  therefore  a  note  based  on  such  contract  is  not  void  iu  the 
hands  of  an  indorsee  before  maturity,  simply  because  based  upon  such 
consideration. 

Note  Based  upon  Illegal  Wagering  Contract  assigned  as  collateral, 
with  an  extension  of  time  for  the  payment  of  the  principal  debt,  consti- 
totes  the  assignee  a  holder  for  value  for  a  new  consideration,  and  freed 
from  the  eqnities  existing  between  the  original  parties  of  which  he  has 
no  notice,  the  collateral  not  being  due  when  assigned,  and  he  can  enforce 
his  security  to  the  extent  of  the  debt  due  him  from  his  assignor. 

Bill  or  Exceptions  Consisting  of  Testimony  of  witnesses,  letters,  etc., 
as  taken  by  the  stenographer,  and  copied,  signed  by  the  judge,  attached 
together,  and  followed  by  a  skeleton  bill  of  exceptions, — as,  "Plaintiff 
was  then  sworn  as  a  witness,  and  testified  as  follows  [here  insert  his 
testimony],"  and  so  as  to  various  witnesses,  depositions,  etc.,  except  that 
the  motion  for  a  new  trial  is  copied  in  full,  and  all  is  attached  together 
and  signed  by  the  judge,  —  is  sufficient,  under  the  Missouri  practice,  and 
anthorizes  the  clerk  to  fill  up  the  skeleton  bill  with  the  evidence,  depo- 
sitions, etc.,  when  called  for. 

Campbell^  for  the  appellants. 

Reynolds,  Dinning,  and  Bymty  and  Thomas,  for  the  r©' 
epondent. 

By  Court,  Black,  J.  The  plaintiff  brought  this  snit  to 
enjoin  the  proposed  sale  of  real  estate  under  a  deed  of  trust 
given  by  him  to  secure  his  note,  dated  the  9th  of  November, 


746  Crawford  v.  Spencer.  [Missouri, 

1881,  for  five  thousand  dollars,  due  in  one  hundred  days,  and 
payable  to  the  order  of  Harlow,  Spencer,  and  Company.  The 
members  of  this  firm  were  made  defendants  by  the  petition, 
but  it  appearing  that  the  note  had  been  assigned  to  D.  R. 
Francis  and  Brother,  the  members  of  that  firm  were  brought 
in  by  amendment,  and  the  suit  proceeded  against  all  these 
parties  and  the  trustee  to  a  final  decree,  as  prayed  for  by  the 
plaintiflF. 

The  ground  for  relief  is,  that  the  note  grew  out  of  alleged 
gambling  contracts,  for  the  purchase  and  sale  of  wheat  and 
corn.  The  evidence  shows  that  the  plaintiff,  who  resided  at 
De  Soto,  in  this  state,  had  been,  for  some  months  prior  to  the 
date  of  the  note,  speculating  in  option  deals  in  grain,  through 
Harlow,  Spencer,  and  Company,  brokers,  at  St.  Louis,  and 
through  them  he  became  a  member  of  the  Merchants'  Ex- 
change. At  the  date  of  the  note  the  brokers  called  upon  the 
plaintiff  for  two  thousand  dollars  margin,  in  addition  to  what 
he  had  before  paid.  At  that  time  they  were  indebted  to  him 
in  the  sum  of  $2,536,  on  account  of  closed  transactions,  but 
they  were  then  carrying  unclosed  deals,  upon  which  margins 
were  due  to  them.  On  the  entire  account,  it  is  clear  that 
plaintiff  owed  them  as  much  as  two  thousand  dollars,  and 
perhaps  as  much  as  five  thousand  dollars.  Plaintiff  was 
about  to  leave  the  state,  on  matters  connected  with  his  busi- 
ness as  railroad  contractor,  and  he  states  that  he  gave  the 
note  and  deed  of  trust  to  them,  that  they  might  use  it  to  raise 
money  if  it  became  necessary  so  to  do,  on  account  of  pending 
or  future  deals.  Harlow,  Spencer,  and  Company  say  the  note 
and  deed  of  trust  were  given  to  them  to  secure  them  against 
loss,  as  the  plaintiff  desired  to  use  his  money  in  other  busi- 
ness; and  this,  we  conclude,  was  the  real  nature  of  the  trans- 
action, for  it  cannot  be  claimed  but  the  brokers,  at  the  date 
of  the  note,  were  entitled  to  at  least  two  thousand  dollars,  on 
account  of  the  face  of  the  then  past  and  pending  transac- 
tions. 

Harlow,  Spencer,  and  Company  failed  on  the  10th  of 
February,  1882.  They  then  had  contracts  for  twenty  thou- 
sand bushels  of  May  corn,  and  thirty  thousand  bushels  of 
May  wheat,  which  they  had  bought  for  plaintiff.  They  in- 
structed the  persons  from  whom  they  had  purchased  the 
grain  to  close  out  the  deals,  which  was  done,  and  an  account 
rendered  for  the  loss,  which  was  settled  by  the  brokers.  Har- 
low, Spencer,  and  Company  then  rendered  an  account  to  the 


April,  1887.]  Crawford  v.  Spencer.  747 

plaintiff,  showing  a  balance  due  to  them  of  $7,128.  When 
Harlow,  Spencer,  and  Company  failed,  they  owed  D.  R. 
Francis  and  Brother,  who  were  also  brokers,  some  twenty- 
six  thousand  dollars,  and  they  turned  the  plaintiff's  note 
over  to  the  latter  firm,  on  account  of  that  indebtedness. 

There  is  much  conflict  in  the  direct  evidence  of  the  plaintiff 
and  the  members  of  the  firm  of  Harlow,  Spencer,  and  Com- 
pany, as  to  the  real  character  of  these  transactions.  The 
plaintiff  says  he  became  acquainted  with  a  member  of  the 
firm,  and  after  frequent  conversations  as  to  the  speculations 
then  going  on,  he  concluded  to  make  some  deals;  that  it  was 
the  distinct  understanding  between  him  and  the  brokers  that 
no  grain  would  be  delivered  or  received,  but  that  differences 
only  would  be  settled,  and  in  this  he  is  corroborated  by  the 
evidence  of  Mr.  Norton,  who  was  interested  with  the  plaintiff 
in  some  of  the  early  transactions.  Harlow,  Spencer,  and 
Company  say  there  was  no  such  understanding,  and  that  the 
deals  were  to  be,  and  were,  all  made  in  good  faith,  and  con- 
templated an  actual  delivery  of  the  commodity,  though  de- 
livery might  be  dispensed  with.  The  brokers  did  buy  and 
ship  to  plaintiff  a  small  quantity  of  corn  for  use,  but  that 
was  paid  for  at  the  time,  and  does  not  enter  into  the  transac- 
tions in  question;  the  difference  between  the  manner  in  which 
that  transaction  was  conducted  and  these  in  question  is  of 
some  significance.  It  is  an  undisputed  fact  in  the  case  that 
not  a  grain  of  wheat  or  corn  was  ever  delivered  under  any  of 
the  contracts  in  question.  They  were  all  closed  out  and  set- 
tled by  the  adjustment  of  differences,  and  in  all  cases  before 
the  maturity  of  the  contracts.  That  they  were  all  mere  specu- 
lations is  not  denied.  The  plaintiff  made,  and  intended  to 
make,  no  arrangement  for  the  delivery  or  reception  of  any  of 
the  grain,  and  this  was  at  all  times  well  known  to  the  brokers. 
The  brokers  were  engaged  in  an  extensive  business,  many 
times  in  excess  of  the  amount  of  produce  handled  by  them. 
It  was  the  especial  duty  of  one  of  the  firm  to  look  after  trans- 
actions like  those  in  question.  If  we  look  to  the  bare  assertion 
of  the  parties,  on  the  one  side  and  the  other,  we  might  well 
conclude  that  plaintiff  has  failed  to  make  out  a  case;  but  if 
we  look  to  the  attending  circumstances,  which  we  must  do, 
we  can  but  conclude  that  these  transactions,  as  between  the 
plaintiff  and  the  brokers,  were  mere  speculations  upon  the 
future  price  of  wheat  and  corn,  with  a  complete  understand- 
ing, on  the  part  of  both,  that  no  grain  was,  in  any  case,  to  be 


748  Ckawford  v.  Spencer.  [Missouri, 

received  or  delivered.  It  is  true  the  contracts  were  all  made 
in  the  names  of  the  brokers,  the  name  of  the  real  principal 
not  appearing;  that  they  were  in  writing,  and,  under  the  rules 
of  the  exchange,  the  purchaser  had  the  right  to  call  for  the 
commodity;  but  they  were  made  by  the  plaintiff's  brokers,  in 
compliance  with  their  understanding  with  him,  and  it  is  be- 
lieved with  an  implied  understanding  with  the  persons  with 
whom  the  deals  were  made  that  no  grain  was  to  be  delivered. 

The  law  is  now  well  settled,  that  a  sale  of  goods  to  be  de- 
livered in  the  future  is  valid;  such  a  contract  is  valid,  though 
there  is  an  option  as  to  the  time  of  delivery,  and  though 
the  seller  has  no  other  means  of  getting  them  than  to  go  into 
the  market  and  buy  them;  but  if,  under  the  guise  of  such  a 
contract,  valid  on  its  face,  the  real  purpose  and  intention  of 
the  parties  is  merely  to  speculate  in  the  rise  or  fall  of  prices, 
and  the  goods  are  not  to  be  delivered,  but  the  difference  be- 
tween the  contract  and  market  price  only  paid,  then  the  trans- 
action is  a  wager,  and  the  contract  is  void.  It  is  not  enough 
to  render  the  contract  void  that  one  party  only  intended  by  it 
a  speculation  in  prices;  it  must  be  shown  that  both  parties  did 
not  intend  a  delivery  of  the  goods,  but  contemplated  and  in- 
tended a  settlement  only  of  differences.  The  burden  of  show- 
ing the  invalidity  of  the  contract  rests  upon  the  party  asserting 
it:  Irwin  v.  Williarj  110  U.  S.  499;  Cockrell  v.  ITiompson,  85 
Mo.  510. 

With  respect  to  a  suit  by  the  brokers  for  services  -rendered 
and  moneys  advanced  for  the  principal  in  procuring  these 
wagering  contracts,  it  was  said,  in  Irwin  v.  Williar,  110  U.  S. 
499:  "It  is  certainly  true  that  a  broker  might  negotiate  such 
a  contract  without  being  privy  to  the  illegal  intent  of  the  prin- 
cipal parties  to  it,  which  renders  it  void,  and  in  such  a  case,  be- 
ing innocent  of  any  violation  of  law,  and  not  suing  to  enforce  an 
unlawful  contract,  has  a  meritorious  ground  for  the  recovery  of 
compensation  for  services  and  advances.  But  we  are  also  of  the 
opinion  that,  when  the  broker  is  privy  to  the  unlawful  design 
of  the  parties,  and  brings  them  together  for  the  very  purpose 
of  entering  into  an  illegal  agreement,  he  is  particeps  criminisy 
and  cannot  recover  for  services  rendered  or  losses  incurred  by 
himself  on  behalf  of  either  in  forwarding  the  transactions." 
In  the  present  case,  the  note  was  given  by  the  plaintiff  to  the 
brokers  to  protect  and  save  the  latter  harmless  because  of 
these  illegal  transactions,  then  pending,  and  thereafter  to  be 
made.     The  illegal  ventures  were  carried  on  by  the  brokers  in- 


April,  1887.]  Crawford  v.  Spencer.  749 

their  own  names,  and  they  were  parties  thereto  from  first  to 
last, — parties  to  the  agreements  which  made  the  contracts 
illegal.  The  case  comes  clearly  within  the  principles  asserted 
in  the  case  last  cited,  where  it  is  said  the  brokers  cannot 
recover. 

In  the  case  of  Cockrell  v.  Thompson,  85  Mo.  513,  Cole  Brothers 
were  the  brokers  or  factors.  They  made  the  ventures  for  Cock- 
rell and  Thompson.  The  deals  were  closed  out,  and  Cockrell 
then  settled  with  the  brokers,  and  sued  Thompson  for  one 
half  of  the  losses  thus  paid  to  Cole  Brothers.  From  the  re- 
port of  the  case,  it  would  seem  that  the  contracts  for  the 
purchase  and  sale  of  the  wheat  were  made  in  the  name  of 
Thompson  and  Cockrell  by  the  factors.  At  all  events,  it  was 
not  alleged  or  shown  that  Cole  Brothers  did  not  make  for 
Cockrell  and  Thompson  valid  contracts.  There  was  no  charge 
that  any  seller  or  buyer  who  dealt  with  Cockrell  and  Thomp- 
son through  the  brokers  did  not  intend  to  deliver  or  receive 
the  wheat.  It  did  not,  therefore,  appear,  nor  was  it  alleged, 
that  the  contracts  made  were  illegal.  In  the  present  case,  we 
are  satisfied  that  it  was  not  only  the  understanding  with  plain- 
tiff and  his  brokers  that  the  deals  were  mere  speculations  on 
prices,  but  that  such  was  also  the  character  of  the  contracts,  as 
between  the  brokers  and  the  persons  with  whom  they  made 
the  contracts.  There  is  therefore  nothing  in  the  Cockrell- 
Thompson  case  inconsistent  with  the  principle  of  law  before 
asserted.  It  follows  that  the  plaintiflf  is  entitled  to  the  rehef 
demanded,  as  against  Harlow,  Spencer,  and  Company. 

It  remains  to  be  seen  whether  he  is  entitled  to  the  relief 
as  against  Francis  and  Brother.  We  do  not  agree  with 
counsel  for  the  plaintiflf,  that  the  note  is  void  in  the  hands  of 
a  bona  fide  indorsee,  because  of  our  statute  upon  the  subject  of 
gambling.  These  statutes,  section  5721-5723,  Revised  Statutes, 
1879,  make  all  notes  "  where  the  consideration  is  money  or 
property  won  at  any  game  or  gambling  device "  void.  The 
assignment  of  such  a  note,  the  statute  says,  shall  not  aflfect 
the  defense.  Under  these  statutes  it  was  held  in  Hickenon  v. 
Benson,  8  Mo.  9,  40  Am.  Dec.  115,  that  a  wager  on  the  result 
of  an  election  was  not  within  their  meaning.  Subsequently 
the  statute  was  so  amended  (sec.  5726)  as  to  include  bets  and 
wagers  on  elections,  but  the  amendment  does  not  include  such 
contracts  as  those  hero  in  question.  The  sections  of  the  stat- 
ute before  noted  are  evidently  designed  to  be  in  aid  of  the 
criminal  law.    This  much  is  said  in  the  case  of  Williama  v. 


750  Crawford  v.  Spencer.  [Missouri, 

Wally  60  Mo.  320.  It  cannot  be  said  that  contracts  like  those 
In  question  come  within  the  provisions  of  the  criminal  stat- 
utes. These  wagering  contracts  are  void,  not  because  pro- 
hibited by  statute,  but  because  they  are  against  public  policy. 
The  note  is  not  void  in  the  hands  of  an  indorsee  before  matu- 
rity, simply  because  based  upon  such  a  consideration.  This 
is  the  view  taken  of  the  statute  in  Third  National  Bank  v. 
Harrison,  10  Fed.  Rep.  243,  and  we  believe  it  to  be  the  correct 
one. 

The  evidence  does  not  show  that  Francis  and  Brother  had 
notice  of  the  infirmity  existing  in  the  note  when  they  took  it, 
which  was  before  maturity;  nor  is  the  validity  of  the  debt 
due  to  them  from  Harlow,  Spencer,  and  Company  fairly  im- 
peached. But  the  further  claim  is,  that  they  took  the  note  as 
collateral  security  for  a  pre-existing  debt,  and  therefore  hold 
the  note  subject  to  any  defense  existing  between  the  original 
parties.  The  proof  is,  that  Harlow,  Spencer,  and  Company 
owed  Francis  and  Brother  twenty-six  thousand  dollars,  on 
open  account.  The  day  before  Harlow,  Spencer,  and  Com- 
pany failed,  they  gave  to  Francis  and  Brother  notes,  including 
the  one  in  question,  amounting  to  twelve  thousand  dollars,  in 
payment  of  that  amount  of  the  indebtedness;  this  left  fourteen 
thousand  dollars  unpaid,  which  was  settled  and  paid  at  fifty 
cents  on  the  dollar,  and  the  entire  account  receipted  in  full. 
Afterwards,  Harlow,  Spencer,  and  Company  took  up  half  the 
notes,  by  a  cash  payment;  this  left  six  thousand  dollars  of  the 
notes,  including  the  one  in  question,  in  the  hands  of  Francis 
and  Brother;  some  of  the  notes  were  small,  and  to  avoid  pro- 
test fees,  Harlow,  Spencer,  and  Company,  who  were  indorsers, 
gave  Francis  and  Brother  their  note,  also,  for  six  thousand 
dollars,  the  latter  retaining  plaintifif's  note.  There  is  still 
due  on  this  note  from  six  hundred  to  two  thousand  dollars; 
the  evidence  is  not  definite  in  this  respect. 

In  Goodman  v.  Simonds,  19  Mo.  107,  it  was  said:  "We  do 
not  say  that  a  bill  of  exchange,  passed  to  a  person  in  payment 
of  a  pre-existing  debt,  would  be  liable  in  his  hands,  without 
notice,  to  the  equities  or  defenses  of  the  original  parties;  but 
that  the  holder  of  a  bill  merely  as  collateral  security  for  a  pre- 
existing debt,  having  given  no  value  for  it, — no  consideration 
for  it, — holds  it  liable  to  such  equities."  This  case  was  cited, 
but  not  mentioned  in  the  opinion,  in  the  subsequent  case  of 
Boatman's  Savings  Institution  v.  Holland,  38  Id.  51.  Subse- 
quently, it  was  held  that  one  who  takes  a  note  as  collateral 


April,  1887.]  Crawford  v.  Spencer.  751 

security  for  a  debt  then  created  is  a  holder  for  value:  Logan  v. 
Smith,  62  Id.  455.  And  still  later  it  was  held  that  if  the  cred- 
itor extends  the  time  of  the  payment  of  the  principal  debt 
until  the  collateral  shall  become  due,  the  agreement  to  delay 
constitutes  the  transferee  of  the  collateral  a  holder  for  value: 
Deere  v.  Marsden,  88  Id.  512.  Where  there  is  a  new  consid- 
eration at  the  time  the  collateral  is  given,  such  as  the  exten- 
sion of  the  time  of  the  payment  of  the  principal  debt,  there 
can  be  no  doubt  but  the  transferee  of  the  collateral  takes  it 
freed  from  equities  existing  between  the  original  parties,  of 
which  he  has  no  notice,  the  collateral  not  being  due  when 
transferred.  Where  there  is  no  such  new  consideration,  there 
is  much  conflict  in  the  authorities.  But  in  this  case,  we  are 
satisfied  that  the  notes,  amounting  to  twelve  thousand  dollars, 
were  taken  in  actual  payment  of  that  amount  of  the  indebted- 
ness of  Harlow,  Spencer,  and  Company,  and  that  being  so, 
Francis  and  Brother  took  the  note  freed  from  the  equities  ex- 
isting as  between  plaintiflf  and  Harlow,  Spencer,  and  Company: 
Daniel  on  Negotiable  Instruments,  8d  ed.,  sec.  332. 

It  is  true  that  after  Harlow,  Spencer,  and  Company  gave 
Francis  and  Brother  their  note  for  six  thousand  dollars,  the 
plaintifl''B  note  for  five  thousand  dollars  is  spoken  of  as  a  col- 
lateral to  the  six-thousand-dollar  note;  but  we  do  not  see  that 
the  giving  of  the  new  note  by  Harlow,  Spencer,  and  Company, 
as  a  substitute  for  their  indorsement,  puts  Francis  and  Brother 
in  any  worse  condition  than  they  were  when  they  took  plain- 
tifl''8  note  in  payment  of  five  thousand  dollars.  In  any  possi- 
ble view  of  the  case,  payment  of  five  thousand  dollars  of  the 
indebtedness  of  Harlow,  Spencer,  and  Company  to  Francis 
and  Brother  was  extended  until  the  note  in  question  matured, 
and  had  it  been  received  by  Francis  and  Brother  as  collateral 
security,  and  not  in  payment,  the  extension  of  time,  under  the 
authorities  before  cited,  would  have  constituted  them  holders 
for  value,  for  a  new  consideration.  On  the  evidence  as  it  now 
stands  in  this  case,  Francis  and  Brother  are  entitled  to  enforce 
this  security  to  the  extent  of  the  amount  due  to  them  from 
Harlow,  Spencer,  and  Company. 

3.  It  is  insisted  by  the  plaintiff,  respondent  here,  that  the 
evidence  is  not  preserved  by  the  bill  of  exceptions,  and  for 
that  reason  the  judgment  should  be  affirmed.  In  obedience 
to  a  writ  of  certiorari,  issued  at  the  instance  of  the  plaintiff, 
the  clerk  has  sent  up  an  exact  copy  of  the  bill  of  exceptions  as 
it  was  when  signed  by  the  judge  and  filed  in  the  court  below. 


752  Crawford  v.  Spencer.  [Missouri, 

It  consists  of  172  pages  of  testimony  of  witnesses,  letters,  and 
the  like,  as  taken  down  and  copied  by  the  stenographer,  at- 
tached together  by  means  of  strings.  Then  follows  a  skeleton 
bill  of  exceptions.  As  an  example,  it  states:  "Plaintiff  was 
then  sworn  as  a  witness,  and  testified  as  follows  [here  insert 
testimony  of  Samuel  W.  Crawford]  ";  and  so  with  the  various 
witnesses  and  depositions  and  motions,  except  the  motion  for 
new  trial,  which  is  copied  in  full;  and  then  follows  the  signa- 
ture of  the  judge.  All  these  papers  are  attached  together  by 
another  fastening.  The  skeleton  bill  was  made  out  in  com- 
pliance with  the  practice  which  prevails  in  this  state.  The 
depositions  and  motions  were  sufRciently  identified,  and  the 
evidence  of  the  witnesses  sworn  in  open  court  was  written  out, 
and  actually  attached  to  the  skeleton  bill  before  the  judge 
signed  the  same.  No  more  could  be  desired.  The  bill  is 
suflScient  in  all  respects.  Under  these  circumstances,  the 
clerk  was  authorized  to  fill  up  the  skeleton  bill  with  the  evi- 
dence, depositions,  and  motions,  when  called  for. 

There  is  no  need  of  a  new  hearing,  so  far  as  the  members  of 
the  firm  of  Harlow,  Spencer,  and  Company  are  concerned,  and 
the  judgment  is,  therefore,  as  to  Corwin  B.  Spencer,  John  F. 
Carpenter,  and  Thomas  H.  Morgan,  aflBrmed;  but  as  to  the 
other  defendants  the  judgment  is  reversed,  and  the  cause  re- 
manded for  a  new  hearing  on  the  issues  between  them  and 
the  plaintiff. 


Contracts  for  Salb  ot  Pebsonal  Feopkbtt  to  be  Delivkbed   ra 

Future.  —  The  question  of  the  validity  of  contracts  for  the  sale  of  personal 
property  to  be  delivered  in  the  future  —  sometimes  called  "futures" — is  one 
ot  special  importance  in  this  country.  These  contracts  may  be  entirely 
valid,  or  they  may  be  objectionable  as  wagering  or  gaming  contracts,  either 
on  general  principles,  or  because  obnoxious  to  some  statutory  provision. 
The  purpose  of  this  note  will  be  to  discuss  the  question  in  all  its  bearings. 

Stock- jobbing  Acts,  and  Other  Statutes. — In  1734,  when  speculation 
in  public  stocks  or  seciirities  had  become  so  prevalent  that  the  whole  busi- 
ness community  was  infected  and  demoralized  by  it,  Parliament  passed  "An 
act  to  prevent  the  infamous  practice  of  stock -jobbing":  7  Geo.  11.,  c.  8; 
which  was  made  perpetual  in  1837:  10  Geo.  II.,  c.  8.  The  object  of  the  act 
was  to  prevent  gambling  in  certain  funds  by  parties  who  never  intended  to 
buy  or  sell,  but  merely  to  speculate  upon  the  future  price  of  stock,  by  mak- 
ing what  are  called  "time  bargains,"  and  compounding  for  differences:  Dos 
Passos  on  Stockbrokers,  383.  It  was  directed  against  fictitious  sales  of 
stock;  and  was  not  intended  to  affect  bona  Jidt  sales,  where  the  stock  was 
actually  transferred,  although  the  seller  was  not  possessed  of  it  at  the  time 
of  making  the  contract:  Mortimer  v.  McCallan,  6  Mees.  &  W.  68;  nor  did  it 
apply  where  the  seller  was  really  possessed  of  the  stock  intended  to  be 
transferred:  Sanders  v.  Kentish,  8  Term  Rep.  162;  CMd  v.  Morky,  8  I«L  610; 


April,  1887.]  Crawford  v.  Spexcer.  753 

Although  the  broker  who  made  the  sale  did  not  disclose  the  name  of  hia 
principal  when  the  bargain  waa  made:  Child  v.  Morley,  supra.  Again,  the 
act  only  applied  to  "public  "  stocks  and  securities,  and  not  to  railway  and 
joint-stock  shares:  Williams  v.  Trye,  18  Beav.  366;  Hewitt  v.  Price,  4  Man.  & 
G.  355;  5  Scott  N.  R.  227;  Time  bargains  in  foreign  funds  were,  further- 
more, not  within  its  prohibitions:  Elaivorth  v.  Cole,  2  Mees.  &  W.  31;  2 
Gale,  220;  Wells  v.  Porter,  3  Scott,  141;  2Bing.  N.  0.  722;  Oakley  v.  Righy, 
3  Scott,  194;  2  Bing.  N.  C.  732;  iforgrtn  v.  Pebrer,  4  Scott,  230,  235;  3  Bing.  N. 
O.  457, 463;  Hendersons.  Bise,  3  Stark.  158;  nor  were  such  agreements  illegal 
by  the  common  law:  Wells  v.  P(yrter,  3  Scott,  141;  2  Bing.  N.  C,  722.  The 
statute  was  thus  of  limited  operation;  but  nevertheless,  a  change  of  senti- 
ment seemingly  having  occurred,  it  was  considered  as  imposing  "unneces- 
Bary  restrictions  on  the  making  of  contracts  for  the  sale  and  transfer  of  public 
stocks  and  securities,"  and  it  was  therefore  repealed  in  1860:  23  &  34  Vict.,  c 
28. 

In  two  of  the  states  of  thb  country  statutes  provide  that  every  contract, 
written  or  verbal,  for  the  sale  or  transfer  of  stocks  or  bonds  of  the  United 
States,  or  of  any  state,  or  corporation,  public  or  private,  is  void,  unless  the 
vendor  is  at  the  time  of  making  the  contract  the  owner  or  assignee  thereof, 
or  authorized  by  such  owner  or  assignee,  or  his  agent,  to  sell  and  transfer  the 
same,  —  Massachusetts  (Pub.  Stats,  of  1882,  c.  78,  sec.  6)  and  South  Carolina 
(Stats,  of  1883,  No.  306,  sec.  1).  In  New  York  a  similar  statute  existed:  I 
R.  S.  of  1829,  p.  710,  sec.  6;  but  it  waa  repealed  by  Laws  of  1858,  chapter 
134,  which  provide  that  no  such  contract  shall  be  void  or  voidable  for  such 
reason,  or  for  want  or  non-payment  of  the  consideration.  In  the  South 
Carolina  statute  there  is  an  express  saving  clause,  which  makes  the  contract 
valid,  if  it  was  the  bona  Jide  intention  of  both  the  parties  thereto,  at  the 
time,  that  the  certificate,  bond,  or  other  evidence  of  debt  should  be  actually 
delivered  and  received  in  kind  at  the  specified  period  in  the  future.  The 
constitution  of  California  also  says:  "  All  contracts  for  the  sale  of  shares  of 
the  capital  stock  of  any  corporation  or  association  on  margin,  or  to  be  de- 
livered at  a  future  day,  shall  be  void,  and  any  money  paid  on  such  contracts 
may  be  recovered  by  the  party  paying  it,  by  suit  in  any  court  of  competent 
jurisdiction ":  Art.  4,  sec.  6.  In  conformity  with  the  foregoing,  it  is  held 
that  a  contract  for  the  transfer  of  shares  in  the  capital  stock  of  a  company 
incorporated  under  the  statutes  of  another  state  is  void,  unless  the  contract- 
ing party  waa  at  the  time  of  making  the  contract  the  owner  or  assignee 
thereof,  or  authorized  to  sell  or  transfer  the  same:  Barrett  v.  Mead,  10  Allen, 
337.  So  a  vendor  must  hold  the  stock  which  he  contracts  to  sell  at  a  future 
day,  free  from  other  liabilities  and  obligations  that  have  already  exhausted  it 
•8  the  basis  of  a  contract  of  sale:  Stebbins  v.  Leowolf,  3  Cush.  137;  but  where 
a  broker,  employed  to  purchase  stock,  contracted  for  it  in  his  own  name 
with  a  person  who  owned  it  at  the  time,  but  had  made  a  prior  contract  of 
•ale,  and  the  employer,  for  groundless  reasons,  repudiated  the  contract,  but 
the  broker,  having  no  knowledge  of  or  reason  to  suspect  the  prior  sale  by  the 
seller,  paid  for  the  stock  when  tendered  to  him,  the  statute  did  not  debar 
the  broker  from  recovering  from  his  employer  the  amount  so  paid:  Brwon  v. 
Phtlps,  103  Mass.  313.  Tlie  statute  avoids  the  contract  only  when  the  vendor 
does  not  own  the  shares  at  the  time  it  is  made.  Therefore,  a  contract  to 
deliver  in  the  future  one  hundred  shares  of  stock,  the  vendor  owning  them 
at  the  time,  and  having  a  right  to  transfer  them,  is  good,  although  he  sell  all 
bat  forty  shares  intermediate  the  contract  and  the  time  of  transfer:  Frost  v. 
Clarkton,  7  Cow.  24.  So  a  promise  by  the  holder  of  uiore  than  tlirce  hundred 
A.M.  8t.  Kip.,  Vol.  I.  -  « 


754  Crawford  v.  Spencer.  [Missouri, 

shares  of  stock  of  a  certain  corporation  to  transfer  three  hundred  shares, 
whenever  he  should  acquire  enough  to  do  so  and  still  retain  a  majority  of  the 
shares  in  the  corporation,  is  not  within  the  statute:  Price  v.  Minot,  107  Mass. 
49;  nor  is  an  agreement  to  share  equally  in  the  profits  and  losses  resulting 
from  the  purchase  and  sale  of  stock  already  owned  by  one  of  the  parties  to 
the  agreement,  he  having  bought  it  through  a  broker  on  a  margin:  Bullard 
V.  SmWi,  139  Id.  492;  nor  an  agreement  by  which  one  party  was  to  pur- 
chase stocks  for  the  other  and  sell  them  within  a  certain  time,  the  profits  to 
be  divided  but  the  loss  to  be  borne  by  the  former:  Barrett  v.  Hyde,  7  Gray,  160. 
A  party  who  has  either  bought  or  sold  stock,  which  the  vendor  did  not  own, 
on  time,  and  who  has  advanced  the  difference  between  the  time  of  the  sale 
and  the  time  appointed  for  the  delivery  of  the  stock,  may  recover  back  the 
money  paid,  nnder  1  N.  Y.  R.  S.,  p.  710,  sec,  8:  Oram  v.  Stehhins,  6  Paige, 
124. 

Statutes  broader  in  their  terms  have  been  passed  in  several  other  states. 
These  statutes  difier  in  their  details,  but  the  following  will  indicate  their 
general  scope:  The  buying  or  selling  or  otherwise  dealing  in  "futures"  is 
made  a  misdemeanor  in  Arkansas  (Dig.  of  Stats,  of  1884,  sees.  1848, 
1849);  Mississippi  (Laws  of  1882,  c.  117);  Ohio  (Laws  of  1885,  p.  254;  R.  S., 
sec.  6934  c);  Texas  (Laws  of  1887,  c.  113);  in  other  states  the  statutes  say  that 
the  buying  or  selling  of  stocks,  bonds,  grain,  cotton,  petroleum,  pork,  or  any 
other  commodity,  on  margin,  without  any  intention  of  future  delivery,  is  a 
misdemeanor:  Iowa  (Laws  of  1884,  c.  93;  Rev.  Code  of  1886,  p.  959  a,  con- 
fined to  "mercantile  or  agricultural  products");  Kentucky  (Stats,  of  1884, 
c.  1613,  restricted  to  the  city  of  Lexington);  Michigan  (Pub.  Acts  of  1887, 
c.  199,  "on  margins  or  otherwise");  Ohio  (Laws  of  1885,  p.  254);  Tennessee 
(Acts  of  1883,  c.  251);  and  the  keeping  of  "bucket  shops,"  or  places  where 
such  business  is  transacted,  is  likewise  made  a  misdemeanor:  Iowa,  Michi- 
gan, Texas;  and  such  contracts  are  in  words  declared  unlawful:  Iowa,  Ken- 
tucky, Michigan,  Mississippi,  Ohio,  Tennessee;  but  in  Iowa  it  ia  expressly 
provided  that  the  act  shall  not  apply  to  nor  in  any  way  affect  any  contracts 
for  the  actual  buying  or  selling  of  any  commodity,  where  the  actual  delivery 
or  receipt  of  the  thing  sold  is  contemplated,  and  in  good  faith  intended  by 
either  of  the  parties  to  the  contract;  and  the  South  Carolina  statute  contains 
a  similar  proviso:  Stats,  of  1883,  No.  306,  sec.  1.  In  Wisconsin  it  is  enacted 
that  contracts  for  future  delivery  shall  not  be  void  when  either  party  shall 
in  good  faith  intend  to  perform  the  same;  that  an  intention  by  either  party 
not  to  perform  the  contract  shall  not  vitiate  it,  if  the  other  party  shall  in 
good  faith  intend  to  perform  it;  and  that  the  contract  shall  not  be  void  be- 
cause the  vendor  is  not  at  the  time  it  is  made  the  owner  of  the  property 
contracted  to  be  sold;  and  it  is  further  provided  that  in  any  action  on  such 
contract  it  shall  not  be  competent  to  show  in  defense,  by  extrinsic  evidence, 
that  the  contract  had  any  other  intent  or  meaning  than  that  expressed  or 
stipulated,  but  evidence  is  admissible  to  show  fraud,  want  of  consideration, 
or  that  both  parties  intended  a  wagering  contract:  Laws  of  1881,  c.  81  (R.  S., 
sec.  2319  a). 

In  Illinois  it  is  provided  that  whoever  contracts  to  have  or  give  to  himself 
or  another  the  option  to  sell  or  buy,  at  a  future  time,  any  grain  or  other  com- 
modity, stock  of  any  railroad  or  other  company,  or  gold,  shall  be  fined  or  im- 
prisoned in  the  county  jail,  and  all  contracts  made  in  violation  of  the  section 
shall  be  considered  gambling  contracts,  and  void:  R.  S.  of  1883,  c.  38, 
sec.  130  (Crim.  Code,  sec.  130).  In  Ohio,  it  is  also  enacted  that  all  agreements 
by  which  any  person  shall  contract  to  sell  or  buy  flour,  grain,  or  meat,  of 


April,  1887.]  Crawford  v.  Spencer.  755 

which  he  is  not  the  owner,  and  has  not  the  possession,  or  when  the  purchaser 
has  not  the  meaaa  to  pay,  or  does  not  intend  actually  to  deliver  or  to  receiv* 
and  pay  for  the  same,  are  illegal  and  void:  Laws  of  1885,  p.  254  (R.  S., 
sec.  6964  b).  The  statute  of  South  Carolina  farther  provides  that  every  con* 
tract  for  the  sale  or  transfer,  at  any  future  time,  of  any  cotton,  grain,  meats, 
or  any  other  product,  shall  be  void,  unless  the  party  contracting  to  sell  or 
transfer  the  same  b  at  the  time  of  making  such  contract  the  owner  or  assignee 
thereof,  or  authorized  by  the  owner  or  assignee,  or  his  agent,  to  enter  into 
the  contract,  unless  it  is  the  bona  fidt  intention  of  both  parties  that  there 
shall  be  aji  actual  delivery  and  receipt  in  kind,  at  the  period  in  the  future 
specified:  Stats,  of  1883,  No.  306,  sec.  1.  In  Georgia,  the  code,  section 
2638,  says:  "A  contract  for  the  sale  of  goods  to  be  delivered  at  a  future  day, 
where  both  parties  are  aware  that  the  seller  expects  to  purchase  himself  to 
fulfill  his  contract,  and  no  skill  and  labor  or  expense  enters  into  the  consid* 
eration,  but  the  same  is  a  pure  speculation  upon  chances,  is  contrary  to  the 
policy  of  the  law,  and  can  be  enforced  by  neither  party."  In  two  states, 
notes,  bills,  bonds,  judgments,  mortgages,  and  other  securities  are  expressly 
made  void  when  the  consideration  is  for  money  or  property  lost  by  reason  of 
the  prohibited  contracts:  Illinois  (Rev.  Stats,  of  1883,  c.  38,  sec.  131;  Crim. 
Code,  sec.  131);  South  Carolina  (Stats,  of  1883,  No.  306,  sec.  6);  and  in  Dli- 
nois  no  assignment  thereof  afiTects  the  defense  of  the  person  giving,  granting, 
drawing,  entering  into,  or  executing  such  securities,  or  the  remedies  of  any 
person  interested  therein :  Sec.  136. 

A  few  decisions  have  interpreted  the  foregoing  statutory  provisions.  Thiu 
it  is  held  that  the  Arkansas  act  was  not  intended  to  prohibit  contracts  for 
future  delivery,  entered  into  in  good  faith,  with  an  actual  intention  of  ful- 
fillment, but  speculation  upon  chances  where  no  delivery  is  contemplated, 
but  the  parties  expect  to  settle  differences:  Fortenlmry  v.  iSUUe,  1  S.  W.  Rep. 
68  (Ark.).  But  contracts  purporting  on  their  face  to  be  contracts  of  pur- 
chase or  sale  of  grain,  stocks,  or  other  property,  to  be  delivered  at  a  future 
day,  but  under  which  neither  of  the  parties  intends  to  buy  or  sell,  but  both 
intend  at  the  time  of  making  the  contracts  to  close  them  by  a  settlement  of 
differences  merely,  are  gambling  or  wagering  contracts,  and  illegal  both  by 
statute  of  Teunossee  and  by  public  policy:  Dunn  v.  Bell,  4  Id.  41  (Tenn.).  So 
in  Georgia,  in  the  language  of  the  code,  a  contract  for  the  sale  of  goods  to 
be  delivered  at  a  future  day,  where  both  parties  are  aware  that  the  seller  ex- 
pects to  purchase  himself  to  fulfill  his  contract,  and  no  skill  and  labor  or 
expense  enters  into  the  consideration,  but  the  same  is  a  pure  speculation 
upon  chances,  is  contrary  to  the  policy  of  the  law,  and  can  be  enforced  by 
neither  party:  Warren  v.  Hevntt,  45  Ga.  501;  Branchy.  Palmer,  65  Id.  210; 
Thompson  v.  Cumminys,  68  Id.  124;  Porter  v.  Jlassengale,  68  Id.  296.  In 
Illinois,  it  will  be  noticed,  the  statute  prohibits  options  "  to  sell  or  buy."  It 
is  therefore  the  accepted  doctrine  that  "puts, "or  privileges  of  delivering 
or  not  delivering  the  thing  sold,  and  "  calls,"  or  privileges  of  calling  for  or 
not  calling  for  the  thing  bought,  are  the  only  objectionable  contracts  within 
its  terms:  Pickerinj  v.  Cease,  79  IlL  328,  330;  Pixley  v.  Boynton,  79  Id.  351, 
353;  Logan  v.  Musick,  81  Id.  415;  Pearce  v.  Foote,  113  Id.  228,  234;  65  Am. 
Rep.  414;  416;  Tenney  v.  Foote,  4  111.  App.  694,  698,  affirmed  in  95  111.  99, 
109;  WebnUr  v.  Slunja,  7  111.  App.  660;  Beveridye  v.  Hewitt,  8  Id.  467; 
Coldertoood  v.  McCrea,  11  Id.  543;  Coffman  v.  Young,  20  Id.  76;  Miller  y. 
Beiul^,  20  Id.  628;  Gilbert  v.  Oaugar,  8  Bins.  214  (C.  C,  N.  D.  of  111.);  Jack- 
•on  T.  Foote,  11  Id.  223;  12  Fed.  Rep.  37  (C.  C,  N.  D.  of  IlL);  Mekkert 
V.  American  Union  Tel.  Co.,  3  McCrary,  521;   11   Fed.  Rep.   193  (C.  C.» 


756  Crawford  v.  Spencer.  [Missouri, 

D.  of  Iowa,  decided  under  the  Illiaois  statute);  although  such  contracts 
'>ight  be  void,  as  wagering  contracts,  at  the  common  law:  See  Pickering  v. 
Cease,  79  HI.  328;  Beveridge  v.  BetmU,  8  111.  App.  467.  "Time"  contracts, 
or  those  where  the  thing  is  to  be  delivered,  but  an  option  is  given  the  seller 
or  buyer  as  to  the  time  of  delivery  or  receipt,  within  a  limited  period  in  the 
future,  are  not  prohibited:  Walcott  v.  Heath,  78  HI.  433;  Pickering  v.  Cease, 
79  Id.  328,  330-  h-'xley  v.  BoynUm,  79  Id.  351,  353;  Logan  v.  Mustek,  81  Id. 
415;  CorheU  v.  trnderwood,  83  Id.  324,  330;  25  Am.  Rep.  392,  397;  Cole  v. 
Milmine,  88  Id.  349;  Tenney  v.  Foote,  4  111.  App.  594,  698,  affirmed  in  95  HI. 
99,  109;  Webster  v.  Sturges,  7  El.  App.  560;  Beveridge  v.  Hetmlt,  8  Id.  467; 
Colderwood  v.  McCrea,  11  Id.  543;  Miller  v.  Beiisley,  20  Id.  528;  GilheH  v. 
Gaugar,  8  Biss.  214  (0.  C,  N.  D.  of  HI.);  although  if  the  parties  do  not 
intend  a  delivery,  but  simply  contemplate  a  settlement  of  differences,  such 
contracts  will  nevertheless  bo  void,  at  the  common  law,  as  wagering  or  gam- 
ing contracts:  Lyon  v.  Culbertson,  83  111.  33;  25  Am.  Rep.  349;  Jackson  v. 
Foote,  11  Biss.  223;  12  Fed.  Rep.  37  (C.  C,  N.  D.  of  HL). 

There  has  been  considerable  discussion  as  to  whether,  in  the  absence  of 
special  statutes,  contracts  of  sale  for  future  delivery,  where  no  actual  de- 
livery was  contemplated  by  the  parties,  but  only  a  settlement  of  the  differ- 
ence between  the  contract  price  and  the  market  price  at  the  time  appointed 
for  delivery  intended,  fell  within  the  general  statutes  as  to  gaming  and 
wagering.  This  question  has  arisen  in  some  cases  from  the  English  theory 
that  such  contracts  were  not  illegal  at  the  common  law:  Wells  v.  Porter,  3 
Scott,  141;  2  Bmg.  N.  0.  722;  Thacker  v.  Hardy,  L.  R.  4  Q.  B.  D.  685;  Irwin 
V.  Williar,  110  U.  S.  499,  510;  and  in  other  cases  from  the  fact  that  by  certain 
statutes  negotiable  paper,  given  on  a  gaming  or  wagering  consideration,  is 
invalidated  in  the  handa  of  honajide  indorsees,  for  value,  without  notice,  and 
before  maturity.  By  the  statute  8  &  9  Vict.,  c.  109,  sec.  18,  "all  contracts 
or  agreements,  whether  by  parol  or  in  writing,  by  way  of  gaming  or  wager- 
ing, shall  be  null  and  void;  and  no  suit  shall  be  brought  or  maintained  in  any 
court  of  law  or  equity  for  recovering  any  sum  of  money  or  valuable  thing 
alleged  to  be  won  upon  any  wager,  or  which  shall  have  been  deposited  in  the 
hands  of  any  person  to  abide  the  event  on  which  any  wager  shall  have  been 
made  ";  and  it  is  held  that  a  colorable  contract  for  the  purchase  and  sale  of 
railway  shares,  where  neither  party  intends  to  deliver  or  accept  the  shares, 
but  merely  to  pay  differences,  according  to  the  rise  or  fall  of  the  market,  is 
gaming  and  wagering  within  the  statute:  Grizewood  v.  Blane,  11  Com.  B.  536; 
Barry  v.  Croskey,  2  Johns.  &  H.  1;  and  of  course  this  doctrine  is  general: 
See  2  Addison  on  Contracts,  Abbott's  ed.,  *1157;  Benjamin  on  Sales,  Ben- 
nett's 4th  ed.,  sec.  542.  A  similar  view  has  been  taken  by  a  few  cases  in 
this  country,  in  which  it  has  been  held  that  such  contracts  were  within  the 
acts  to  prevent  gaming  and  wagering,  or  at  least  were  opposed  to  the  public 
policy  thereby  established:  Cassard  v.  Hinman,  1  Bosw.  207;  Bigelow  v. 
Benedict,  70  N.  Y.  202,  206;  26  Am.  Rep.  573,  576;  Barnard  v.  Backhaus,  52 
Wis.  593,  599,  approved  in  Erxringham  v.  Meighan,  55  Id.  354;  Lofwry  v.  Dill- 
man,  59  Id.  197;  Wall  v.  Schneider,  59  Id.  352,  354;  48  Am.  Rep.  520,  521; 
In  re  Green,  7  Biss.  338,  339;  15  Nat.  Bank.  Reg.  198  (D.  C,  W.  D.  of  Wis.); 
FUgg  V.  Baldwin,  38  N.  J.  Eq.  219;  48  Am.  Rep.  308;  In  re  Hunt,  26  Fed. 
Rep.  739  (D.  C,  D.  of  N.  J.);  McGreio  v.  City  Produce  Exchange,  4  S.  W.  Rep. 
38  (Tenn.);  Dunn  v.  Bell,  4  Id.  41,  44  (Tenn.);  but  it  must  be  admitted  that 
a  considerable  straining  of  language  is  generally  required  to  reach  this  result. 
It  has  also  been  held  that  a  promissory  note,  the  consideration  of  which  grows 
out  of  a  speculating  transaction,  is  void  in  the  hands  of  a  bona  fide  indorsee. 


April,  1887.]  Crawford  v.  Spencer.  757 

for  valae,  without  notice,  and  before  maturity,  under  a  general  statutory 
provision  that  all  evidences  of  debt,  "executed  upon  a  gaming  considera- 
tion," are  void  in  the  hands  of  any  person:  Cunningham  v.  National  Bank  qf 
Augusta,  71  Ga.  400;  51  Am.  Rep.  266;  see  also  HawUy  v.  Bibb,  69  Ala.  52; 
Barnard  v.  Backhaus,  52  Wis.  593;  but  other  cases,  with  more  reason,  reach 
the  opposite  conclusion  under  similar  statutes,  although  recognizing  that  on 
general  considerations  of  public  policy  the  notes  could  not  be  enforced  be- 
tween the  immediate  parties:  The  principal  case;  Third  National  Bank  v. 
Tinsley,  11  Mo.  App.  498;  Tldrd  National  Bank  v.  Harrison,  3  McCrary,  316; 
10  Fed.  Rep.  243  (D.  C,  K  D.  of  ilo.);  TJdrd  National  Bank  v.  Tinsky,  MS. 
opinion,  quoted  3  McCrary,  323;  10  Fed.  Rep.  249;  in  Michigan  bona  Jid« 
holders,  without  notice,  are  expressly  excepted:  Shaw  v.  Clark,  49  Mich.  384; 
43  Am.  Rep.  474. 

Vendor  need  not  Own  Pbopeety.  —  It  is  a  well-settled  rule  that  a  con- 
tract for  the  sale  of  personal  property  to  be  delivered  in  the  future  is  not 
invalid  merely  because  the  vendor,  at  the  time  the  contract  was  made,  has  not 
the  property,  nor  has  entered  into  any  contract  to  buy  it,  nor  has  any  other 
means  of  getting  it  than  to  go  into  the  market  and  buy  it:  Benjamin  on 
Sales,  Bennett's  4th  ed.,  sec.  542;  Newmark  on  Sales,  sec.  369;  2  Addison 
on  Contracts,  Abbott's  ed.,  *1157;  Bishop  on  Contracts,  sec.  534;  I  Whar- 
ton on  Contracts,  sec.  453;  Biddle  on  Stockbrokers,  185,  302,  309;  Dos  Pas- 
ses on  Stockbrokers,  410,  452;  note  to  T/iacker  v.  Hardy,  18  Am.  Law  Reg., 
N.  S.,  258,  by  Judge  Bennett;  Hibblewhite  v.  McMorine,  5  Mees.  &  W.  462; 
Mortimer  V.  McCaUan,  6  Id.  58;  Porter  v.  Viets,  1  Biss.  177;  Clarke  v.  Foss, 
7  Id.  540;  Melchert  v.  American  Union  Tel.  Co.,  3  McCrary,  521,  524;  11 
Fed.  Rep.  193,  195,  and  note,  pages  530  and  204,  respectively,  by  Dr.  Fran- 
cis Wharton;  BartleU  v.  SmUIi,  4  McCrary,  388;  13  Fed.  Rep.  263;  Cobb  v. 
Prell,  5  McCrary,  80;  15  Fed.  Rep.  774;  22  Am.  Law  Reg.,  N.  S.,  609;  Kirk- 
Patrick  v.  Adams,  20  Fed.  Rep.  287;  Irwin  v.  Williar,  110  U.  S.  499;  Hawleff 
V.  Bibb,  69  Ala.  62;  Hatch  v.  Douglas,  48  Conn.  116,  127;  40  Am.  Rep.  154, 
155;  Whitesides  v.  Hunt,  97  Ind.  191,  195,  202;  49  Am.  Rep.  441,  444,  448; 
Sawyer  v.  Taggart,  14  Bush,  727,  733;  18  Am.  Law  Reg.,  N.  S.,  222,  224, 
and  note,  page  230,  by  Charles  H,  Wood;  Beadles  v.  McElrath,  3  S.  W.  Rep. 
152,  154  (Ky.);  Conner  v.  Robertson,  37  La.  Ann.  814;  55  Am.  Rep.  521,  525; 
Rumsey  v.  Berry,  65  Me.  570,  573;  Gregory  v.  WendeU,  39  Mich.  337,  340;  33 
Am.  Rep.  390,  392;  Gregory  v.  Wendell,  40  Mich.  432;  Clay  v.  Allen,  63  Mia*. 
426;  Coetrell  v.  Thompson,  85  Mo.  510,  519;  the  principal  case;  Williams  t. 
Tiedemann,  6  Mo.  App.  269;  Kent  v.  MiUenberger,  13  Id.  503;  Stanton  v. 
Small,  3  Sand.  230;  Cassard  v.  Hinman,  1  Bosw.  207;  Mcllvaine  v.  Eger- 
ton,  2  Robt  422;  Tyler  v.  Barrows,  6  Id.  104;  Peabody  v.  Speyers,  56  N.  Y. 
230,  234;  Bigelow  v.  Benedict,  70  Id.  202,  206;  26  Am.  Rep.  573,  676;  Mem- 
ton  V.  Oheen,  75  Pa.  St  166,  168;  Marsliall  v.  Thruston,  3  Lea,  740;  See- 
ligson  v.  Lewis,  65  Tex.  215;  67  Am.  Rep.  593,  696;  Barnard  v.  BackJiaus, 
62  WU.  693.  697,  699;  WaU  v.  Schneider,  69  IiL  352,  354;  48  Am.  Rep.  620, 
621.  The  contrary  doctrine  announced  in  Lorymer  v.  Smit/i,  1  Bam.  &  C.  1, 
and  Bryan  v.  Letris,  Ryan  &  M.  386,  was  overruled  in  the  leading  case  of 
Hibblewhite  v.  McMorine,  supra.  It  may  be  stated  that  such  future  contracta 
may  be  made  for  the  tale  of  gold:  Appleman  v.  Fislier,  34  Md.  540;  Peabody 
V.  Speyers,  56  N.  Y.  230,  234;  Bigelow  v.  Benedict,  9  Hun,  429, 432,  affirmed  ia 
70  N.  Y.  202;  26  Am.  Rep.  673;  Brown  v.  Speyers,  20  Gratt.  296;  a  contract 
for  the  pnrcbaM  or  sale  of  gold  not  being  opposed  to  public  policy. 

In  Gregory  v.  Wendell,  39  Mich.  337,  340,  33  Am.  Rep.  390,  392,  Maraton,  J., 
■ays:  "  Some  nice  diatiactiona  have  heretofore  been  drawn  aa  to  the  ri|{ht  of 


758  Crawford  v.  Spencer.  [Missouri, 

a  person  to  sell  personal  property  not  at  the  time  owned  by  him,  but  which 
he  intended  to  gc  into  the  market  and  buy,  or  aa  was  said,  that  which  he 
hath  neither  actually  nor  potentially.  Courts  must,  however,  from  necessity, 
recognize  the  methods  of  condncting  and  carrying  on  business  at  the  present 
day,  and  applying  well-settled  principles  of  the  common  law,  enforce  what 
miglit  be  called  a  new  class  or  kind  of  agreements,  heretofore  unknown,  un- 
less they  violate  some  rule  of  public  policy.  The  mercantile  business  of  the 
present  day  could  no  longer  be  successfully  carried  on,  if  merchants  and 
dealers  were  unable  to  purchase  or  sell  that  which  as  to  them  had  no  actual 
or  potential  existence.  A  dealer  has  a  clear  right  to  sell  and  agree  to  deliver 
at  some  future  time  that  which  he  then  has  not,  but  expects  to  go  into  the  mar- 
ket and  buy.  And  it  is  equally  clear  that  the  parties  may  mutually  agree  that 
there  need  not  be  a  present  delivery  of  the  goods,  but  that  such  delivery  may 
take  place  at  some  other  time;  and  that  there  need  not  be  an  actual  manual 
possession  given,  but  a  symbolical  one,  as  by  delivery  of  warehouse  receipts, 
according  to  custom,  is  also  beyond  dispute."  "  Present  ownership  is  of  less 
consequence  than  the  intention  of  the  contracting  parties":  Cochrell  v. 
Tliompson,  85  Mo.  510,  519.  The  fact  that  the  particular  goods  are  not  iden- 
tified is  of  no  consequence,  because,  from  the  very  nature  of  the  contract, 
the  sale  is  not  of  ascertained  articles,  but  of  articles  of  a  designated  kind  to 
be  selected  at  the  time  of  performance,  and  may  be  discharged  by  the  de- 
livery of  any  articles  answering  to  the  general  description  given  in  the  con- 
tract: Saioyer  v.  Tajgart,  14  Bush,  727,  736;  Conner  v.  Robertson,  2>1  La.  Ann. 
814;  55  Am.  Rep.  521,  526.  A  note  payable  in  the  future  in  cotton  ia  not 
illegal  because  the  maker  did  not  at  the  time  have  the  cotton  on  hand  ready 
to  be  delivered:  PluUipa  v.  Ocmulgee  Mills,  55  Ga.  633.  "Such  a  principle 
would  make  illegal  every  loan  of  com  by  one  neighbor  to  another,  to  be  re- 
turned at  the  end  of  the  season  when  the  new  crop  came  in  ":  Id.  Of  course, 
if  one  has  the  property  under  his  control,  as  a  growing  crop,  he  has  the  right 
to  sell  it,  to  be  delivered  at  a  future  time:  Sanborn  v.  Benedict,  78  111.  309; 
and,  necessarily,  a  contract  for  the  sale  and  transfer  at  a  future  day  of  a 
'Certain  number  of  shares  of  stock  which  the  vendor  has  at  the  time  of  de- 
livery, and  of  which  an  actual  transfer  is  intended,  is  not  a  stock-jobbing  or 
wagering  contract:  Noyea  v.  Spaulding,  27  Vt.  420. 

Wagering  Contracts  for  Sale  are  Void.  — While  it  is  thus  seen  that 
a  contract  for  the  sale  of  personal  property,  to  be  delivered  in  the  future, 
may  be  valid,  although  the  vendor  has  not  the  property  at  the  time  the  con- 
tract is  made,  but  is  obliged  to  procure  it  to  meet  the  contract,  yet  such  a 
contract  is  only  valid  where  the  parties  really  intend  that  the  property  is  to 
be  delivered  by  the  seller,  and  the  price  paid  by  the  buyer.  If  the  in- 
tent of  the  parties  be  merely  to  speculate  in  the  rise  and  fall  of  prices, 
and  the  property  is  not  to  be  delivered,  but  one  party  is  to  pay  to  the  other 
the  difference  between  the  contract  price  and  the  market  price  at  the  time 
specified  for  executing  the  contract,  then  the  transaction,  whatever  be  its 
form,  is  a  wager,  and  void.  It  has  been  shown  above  that  this  is  the  conclu- 
sion reached  by  Orizevoood  v.  Blane,  11  Com.  B.  536,  and  other  cases  under 
the  gaming  act  of  8  &  9  Vict.,  c.  109,  sec.  18,  such  contracts  not  being  ob- 
noxious to  the  common  law  of  England;  and  that  several  courts  of  this  coun- 
try, in  states  which  have  not  adopted  the  special  statutes  already  noticed 
invalidating  these  transactions,  have  also  been  disposed  to  adopt  the  rule  as  a 
result  of  general  acts  against  gaming  and  wagering.  But  in  a  great  majority 
of  the  states  the  rule  is  adopted  as  a  part  of  the  American  common  law,  and 
the  contracts  pronounced  void  as  wagering   or  gambling  transactions  for 


April,  1887.]  Crawford  v.  Spencer.  759 

reasons  of  public  policy:  Benjamin  on  Sales,  Bennett's  4th  ed.,  American 
note  to  sec.  542;  Newmark  on  Sales,  sec.  369;  Bishop  on  Contracts,  sec.  534; 
1  Wharton  on  Contracts,  sec.  453;  Biddle  on  Stockbrokers,  313;  Dos  Passos 
on  Stockbrokers,  410;  In  re  Chandler,  13  Am.  Law  Reg.,  N.  S.,  310;  9  Nat. 
Bank.  Reg.  514;  atib  nom.  Ex  parte  Young,  6  Biss.  53,  and  note  thereto  in  13 
Am.  Law  Reg.,  N.  S.,  318,  by  Judge  Redfield;  Jackson  v.  Foote,  11  Biss.  223; 
12  Fed.  Rep.  37;  BartleU  v.  SmUJi,  4  McCrary,  388;  13  Fed.  Rep.  263;  Cobb 
V.  Prell,  5  McCrary,  80;  15  Fed.  Rep.  774;  22  Am.  Law  Reg.,  N.  S.,  609, 
and  note  thereto  in  5  McCrary,  89;  22  Am.  Law  Reg.,  N.  S.,  615,  by  Adel- 
bert  Hamilton;  Bi-yant  v.  Western  Union  Tel.  Co.,  17  Fed.  Rep.  825;  Kirk- 
fatrich  v.  Adams,  20  Id.  287;  Bangs  v.  Hornich,  30  Id.  97,  98;  Mutual  lAfe 
Im.  Co.  V.  Watson,  30  Id.  653;  Ward  v.  Vosburgh,  31  Id.  12,  13;  /rwin  v. 
Williar,  110  U.  S.  499;  Justhx.  HolUday,  2  Mackey,  346;  Hawleyv.  Bibb, 
69  Ala.  52;  Hatch  v.  Douglas,  48  Conn.  116,  127;  40  Am.  Rep.  154;  White- 
sides  V.  Hunt,  97  Ind.  191,  195,  202;  49  Am.  Rep.  441,  445,  449;  Lyon  v. 
Culbertson,  83  IlL  33;  25  Am.  Rep.  349;  Lotoe  v.  Young,  59  Iowa,  304;  rirst 
National  Bank  v.  Oskaloosa  Packing  Co.,  66  Id.  41;  Tomblin  v.  Callen,  69  Id. 
229;  Beadles  v.  McElrath,  3  S.  W.  Rep.  152,  154  (Ky.) ;  Conner  v.  Robertson, 
21  La.  Ann.  814;  55  Am.  Rep.  521,  524;  Rwmsey  v.  Berry,  65  Me.  570;  Greg- 
ory V.  Wendell,  39  Mich.  337;  33  Am.  Rep.  390,  395;  Clay  v.  Allen,  63  Miss. 
426;  Cockrell  v.  T/iompson,  85  Mo.  510;  the  principal  case;  Waterman  v. 
Buckland,  1  Mo.  App.  45;  Williams  v.  Tiedemann,  6  Id.  269;  Kent  v. 
Milienberger,  13  Id.  503;  Third  National  Bank  v.  Tinsley,  Cir.  Ct.  of  Mo., 
MS.  opinion,  quoted  3  McCl-ary,  323;  10  Fed.  Rep.  249;  Rudolf  ▼•  Win- 
ters, 7  Neb.  125;  Kingsbury  v.  Kirwan,  77  N.  Y.  612,  affirming  11  Jones  &  S. 
451;  Yerkes  v.  Salomon,  11  Hun,  471;  Nicliols  v.  Lumpkin,  19  Jones  &  S. 
88;  Brua's  Appeal,  55  Pa.  St.  294;  Swartz's  Appeal,  3  Brewst  131;  Thomp- 
son's Estate,  15  Phila.  532;  Maaton  v.  Oheen,  75  Pa.  St.  166,  168;  North  v. 
PldUipg,  89  Id.  250,  256;  Ruchizky  v.  De  Haven,  97  Id.  202,  209;  Orijiths  v. 
Sears,  112  Id.  523;  Waughv.  Beck,  114  Id.  422;  Marshall  v.  Thruston,  3  Lea, 
740;  Beadles  v.  Ownby,  16  Id.  424;  Dunn  v.  Bell,  4  S.  W.  Rep.  41  (Tenn.); 
Seeligson  v.  Lewis,  65  Tex.  215;  57  Am.  Rep.  593,  596.  Of  course  an  agree- 
ment to  make  a  "comer "in  stock,  by  buying  it  up  so  as  to  control  the 
market,  and  then  purchasing  for  future  deliveries,  would  be  invalid:  Samp- 
mm  V.  Sliaw,  101  Mass.  145;  3  Am.  Rep.  327. 

The  doctrine  is  well  stated  by  Franklin,  C,  after  a  review  of  cases,  in 
WhUetidea  v.  Hunt,  97  Ind.  191,  202,  49  Am.  Rep.  441,  448:  "We  conclude 
from  the  foregoing  authorities  that  in  this  class  of  cases  the  correct  rule  is, 
that  where  a  commodity  is  bought  for  future  delivery,  no  matter  what  the 
form  of  the  contract  is,  the  law  regards  the  substance,  and  not  the  shadow, 
and  if  the  parties  mutually  understood  and  intended  that  the  purchaser 
should  pay  for  and  the  seller  should  deliver  the  commodity  at  the  maturity 
of  the  contract,  it  is  a  legal  and  valid  transaction,  and  the  fact  that  the  pur- 
chaser is  required  to  deposit  a  margin,  and  increase  the  same  at  any  time  tha 
market  requires  it,  in  order  to  secure  the  payment  at  maturity,  or  that  the 
seller  shall  deposit  a  margin,  and  increase  the  same,  like  the  purchaser,  in 
order  to  secure  the  delivery  at  maturity,  does  not  vitiate  the  contract.  But 
if,  at  the  time  of  the  contract,  it  is  mutually  understood  and  intended  by  all 
the  parties,  whether  expressed  or  not,  that  the  commodity  said  to  be  sold 
was  not  to  be  paid  for  nor  to  be  delivered,  but  that  the  contract  was  to  be 
settled  and  adjusted  by  the  payment  of  difference  in  price,  —  if  the  price 
should  decline  the  purchiiser  paying  the  difference,  if  it  should  rise  the 
seller  paying  the  advance,  the  contract  price  being  the  basis  upon  which  to 


760  Crawford  v.  Spencer.  [Missouri, 

calculate  differences,  —  iu  such  case,  it  would  be  a  gambling  contract,  au J 
void,  and  the  deposits  of  margins  are  only  to  be  considered  as  attempting  to- 
secure  the  terms  of  the  bet  on  prices  at  some  future  time. " 

If  "  margins  "  are  deposited  upon  such  an  illegal  transaction,  they  cauuut 
be  recovered  back:  Gretjory  v.  Wendell,  39  Mich.  337;  33  Am.  Hep.  390;. 
Tliompson  v.  Cummings,  C8  Ga.  124;  compare  In  re  Chandler,  13  Aui.  Law 
Reg.,  N.  S.,  310;  2  Nat.  Bank.  Reg.  514;  8ub  nom.  Ex  parte  Young,  C  Biss. 
53;  but  in  Norton  v.  Blinn,  39  Ohio  St.  145,  it  was  decided  that  while  the 
policy  of  the  law  is  to  leave  the  parties  to  such  a  transaction  where  it  finds 
them,  yet  an  agent  who  receives  money  of  his  principal  to  invest  iu  illegal 
options  was  bound  to  account  therefor. 

Money  loaned  to  pay  losses  incurred  in  stock-jobbing  transactions,  it  has 
been  held,  could  be  recovered  back:  Faikney  v.  Reynous,  1  W.  Black.  633;  4 
Burr.  2069;  Petriev.  Hannay,  3  Term  Rep.  418;  Steerav.  Lashley,  6  Id.  61, 
62;  but  it  was  more  recently  decided  that  if  the  money  be  knowingly  lent 
for  the  express  purpose  of  enabling  the  borrower  to  settle  such  losses,  it  can- 
not be  BO  recovered:  Cannan  v.  B)-yce,  3  Barn.  &  Aid.  179,  185;  and  one  who, 
knowingly,  and  with  the  purpose  of  furthering  a  gambling  transaction  in 
purchasing  commodities  on  margin,  lends  money  to  another,  cannot  recover 
it;  but  it  is  not  enough  to  defeat  the  recovery  that  the  lender  knew  of  the 
borrower's  intention  to  illegally  appropriate  the  loan;  he  must  know  that 
the  borrower  is  purposing  the  specific  illegal  use,  and  must  be  implicated  as 
a  confederate  in  the  trainsaction:   Waugh  v.  Beck,  114  Pa.  St.  422. 

A  promissory  note  given  for  a  debt  arising  in  whole  or  in  part  out  of  an 
illegal  transaction  is,  as  between  the  parties,  void:  Seeligaon  v,  Lewis,  65  Tex. 
215;  57  Am.  Rep.  593;  and  where  some  of  the  transactions  which  enter  into 
the  consideration  of  a  note  and  mortgage  are  merely  gaming  transactions, 
they  render  the  whole  security  void:  Barnard  v.  BackJiaus,  52  Wis.  593. 
Nor  can  negotiable  paper  tainted  with  the  illegality  be  recovered  upon  by 
an  indorsee  thereof  with  notice:  Steers  v.  Lashley,  6  Term  Rep.  61;  nor  when 
the  paper  was  indorsed  after  maturity:  Brown  v.  Turner,  7  Id.  6S0;  and  of 
course  the  assignee  of  a  bond  who  takes  with  notice  cannot  recover:  Amor]f 
V.  MeryweatJier,  4  Dowl.  &  R.  86;  2  Barn.  &  C.  573;  Oriffitlm  v.  Sears,  112 
Pa.  St.  523;  but  negotiable  paper  which  could  not  be  enforced  between  the 
immediate  parties  because  of  illegality  is  good  in  the  hands  of  a  bonajide  in- 
dorsee, without  notice,  for  value,  and  before  maturity:  Greenland  v.  Dyer,  2 
Man.  &  R.  422;  Day  v.  Stuart,  6  Bing.  109;  3  Moore  &  P.  334;  the  principal 
case;  Third  National  Bank  v.  Tinsley,  1 1  Mo.  App.  498;  Tliird  National  Bank 
V.  Harrison,  3  McCrary,  316;  10  Fed.  Rep.  243  (D.  C,  E.  D.  of  Mo.);  TJdrd 
National  Bank  v.  Tinsley,  MS.  opinion,  quoted  3  McCrary,  323;  10  Fed.  Rep. 
249  (Mo.  Cir.  Ct.);  Shaw  v.  Clark,  49  Mich.  384;  43  Am.  Rep.  474;  unless, 
as  in  Illinois,  it  is  expressly  made  void  by  statute:  Boot  v.  Merriam,  27  Fed. 
Rep.  909  (C.  C,  D,  of  Neb.,  decided  under  the  Illinois  statute);  Tenney  v. 
Foote,  4  111.  App.  594,  afG.rmed  in  95  111.  99;  compare  Jackson  v.  Foote,  11  Biss. 
223;  12  Fed.  Rep.  37  (C.  C,  N.  D.  of  El.);  or  held  to  be  void  under  general 
etatutes  against  gaming  and  wagering:  Cunningham  v.  National  Bank  of  Au- 
gusta, 71  Ga.  400;  51  Am.  Rep.  266;  Hawky  v.  Bibb,  69  Ala.  52;  Barnard  v. 
Backliaus,  52  Wis.  593. 

Intention  o»  PABTiEa  the  Criterion.  —  Aa  above  intimated,  it  is  the 
real  intention  of  the  parties  to  a  contract  for  sale  for  future  delivery  which 
makes  it  valid  or  invalid:  Note  to  Thacker  v.  Hardy,  18  Am.  Law  Reg., 
N.  S.,  259,  by  Judge  Bennett;  Heniz  v.  Jewell,  4  Woods,  656;  20  Fed.  R«p. 
692:  BenneU  v.  Covington,  22  Id.  816;  Justh  v.  HoUiday,  2  Mackey,  346;. 


April,  1887.]  Crawford  v.  Spencer.  761 

Gregory  v.  Wendell,  39  Mich.  337,  343;  33  Am.  Rep.  390,  395;  40  Mich.  432. 
"The  real  intention  of  the  parties,"  says  Adams,  C.  J.,  in  Tomblin  v.  Caller., 
69  Iowa,  229,  231,  "of  course,  mast  determine  the  character  of  the  transac- 
tion; and  in  arriving  at  the  intention,  we  must  be  governed  by  the  evidence, 
and  not  by  conjectures  based  upon  our  knowledge  of  other  contracts." 
"The  actual  intention  may  be  difficult  to  prove  or  disprove;  but  when  once 
the  fawjt  is  established  one  way  or  the  other,  there  is  no  difficulty  in  applying 
the  law":  Hatch  v.  Douglas,  48  Conn.  116,  127;  40  Am.  Rep.  154,  155. 

In  order,  moreover,  to  render  the  contract  invalid,  the  illegal  intent  must 
have  been  participated  in  by  both  the  parties.  If  one  of  the  parties  intends 
an  actual  purchase  and  sale,  the  contract  as  to  him  will  not  be  affected  by  an 
illegal  intent  or  purpose  of  the  other  not  communicated  or  concurred  in: 
Newmark  on  Sales,  sec.  369;  Benjamin  on  Sales,  Bennett's  4th  ed.,  American 
note  to  sec.  542;  1  Wharton  on  Contracts,  sec.  453;  note  to  ThacJcer  v.  Hardy, 

18  Am.  Law  Reg.,  N.  S.,  259,  by  Judge  Bennett;  Lehman  v.  Strasslerger,  2 
Woods,  554,  564;  Clarle  v.  Foss,  7  Biss.  540;  BartleU  v.  SnuUi,  4  McCrary, 
388;  13  Fed.  Rep.  263;  Bangs  v.  Horruck,  30  Fed.  Rep.  97,  98;  Ward  v.  Vos- 
burgh,  31  Id.  12, 13;  Pixleyv.  Boynton,  79  111.  351,  354;  McCormickv.  Nichols, 

19  111.  App.  334;  WhUesides  v.  Hunt,  97  Ind.  191,  210;  Murry  v.  Ocheltree,  59 
Iowa,  435;  Conner  v.  Robertson,  37  La.  Ann.  814;  65  Am.  Rep.  521,  525; 
Gregory  v.  Wendell,  40  Mich.  432;  Clay  v.  Allen,  63  Miss.  426,  430;  Cockrell 
V.  Thompson,  85  Mo.  510;  the  principal  case;  Williams  v.  Tiedemann,  6  Mo. 
App.  269;  Teasdale  v.  McPike,  25  Id.  341;  Williams  v.  Carr,  80  N.  C. 
294,  298;  Wall  v.  Schneider,  59  Wis.  352;  48  Am.  Rep.  520.  "If  one  of 
the  parties  acts  in  good  faith,  with  the  intention  and  expectation  of  de- 
livering  or  receiving  the  property  which  is  the  subject  of  the  sale,  the  trans* 
action  as  to  him  will  be  valid,  and  will  be  a  sufficient  consideration  for  a 
contract  in  his  hands  based  thereon ":  Murry  v.  OcJieltree,  supra.  "In  order 
to  make  a  wager,  both  parties  must  intend  it  to  bo  such.  If  one  intends  & 
bona  fide  sale  or  purchase,  while  the  other  means  only  a  gambling  risk  upon 
prospective  differences,  there  will  be  no  propriety  in  depriving  the  former  of 
the  benefit  of  his  contract  because  of  a  secret  reservation  in  the  mind  of  the 
latter  ":  Williams  v.  Tiedemann,  supra.  But  the  effect  of  the  Teimessee  act 
of  1883,  chapter  251,  is  to  declare  the  dealing  in  futures,  where  either  party 
intends  a  mere  speculation  on  the  rise  and  fall  of  prices,  gaming:  McOrevo  v. 
City  Produu  ExcJianye,  4  S.  W.  Rep.  38  (Tenn.). 

The  validity  of  the  contract,  furthermore,  depends  upon  the  intent  of  th» 
parties  at  the  time  it  is  made.  It  is  therefore  perfectly  competent  for  the 
parties,  after  having  entered  into  a  valid  contract  for  sale  for  future  deliv- 
ery, to  agree  upon  a  settlement  thereof  by  payment  of  differences  between 
the  contract  price  and  the  market  price,  instead  of  by  actual  delivery:  New- 
mark  on  Sales,  sec.  369;  Clarke  v.  Foss,  7  Biss.  540;  Gilbert  v.  Gaugar,  8  Id. 
214;  Kirkpntrick  v.  Adams,  20  Fed.  Rep.  287;  Ward  v.  Vosburgh,  31  Id.  12, 
13,  15;  Sau;yer  v.  Taggart,  14  Bush,  727;  18  Am.  Law  Reg.,  N.  8.,  222; 
Conner  v.  Roftertson,  37  La.  Ann.  814;  65  Am.  Rep.  621,  625;  Kent  v.  AfilUn- 
beryer,  13  Mo.  App.  603,  608,  510;  Wall  v.  ScImeUler,  69  Wis.  352,  359;  48 
Am.  Rep.  520,  526;  for,  as  is  tersely  observed  by  Thompson,  J.,  in  Kent  v. 
Miltenlierger,  supra,  "  it  has  never  been  held  that  a  lawful  contract  may  not 
be  discharged  by  the  voluntary  act  of  the  obligee  in  accepting  a  pecuniary 
equivalent  for  its  performance."  And  if  delivery  is  in  fact  intended,  the 
contract  is  valid,  it  is  held,  although  the  parties  may  at  the  same  time  con- 
template the  possibility  of  a  settlement  by  a  payment  of  differences:  Tombli» 
T.  Callen,  69  Iowa,  227.     It  may  here  be  noticed  that  parties,  after  having 


762  Crawford  v,  Spencer.  [Missouri, 

made  an  illegal  contract,  are  at  liberty  to  enter  into  another  contract  in  rela- 
tion to  the  same  subject-matter  as  though  no  former  contract  existed,  but  the 
new  contract  must  be  in  no  sense  a  continuation  of  the  old;  the  old  contract 
must  be  utterly  abaudoned,  so  that  neither  its  terms  nor  its  consideration, 
nor  any  claim  or  right  springing  out  of  it,  shall  enter  into  the  new:  Webster 
V.  Sturgea,  7  111.  App.  560. 

The  fact  that  speculation  was  the  object  is  not  material,  if  the  parties  in 
good  faith  intend  an  actual  purchase  and  sale:  Gregory  v.  Wendell,  40  Mich. 
432,  437;  Sauryer  v.  Taggart,  14  Bush,  727;  18  Am.  Law  Reg.,  N.  S.,  222; 
Smiih  V.  Bouvier,  70  Pa.  St.  325.  "The  right  to  buy  grain  in  the  open  mar- 
ket in  the  hope  to  profit  by  a  rise  in  the  market  value,"  says  Cooley,  J.,  in 
Gregory  v.  Wendell^  eupra,  "is  aa  plain  as  the  right  to  buy  wild  lands  or  any 
other  property." 

The  question  whether  the  contract  is  a  wagering  one  or  not  is  a  question 
of  fact  for  the  jury:  Fereira  v.  Gabell,  89  Pa.  St.  89;  Kirhpatrkk  v.  Adams, 
20  Fed.  Rep.  287;  Gregory  v.  Wendell,  39  Mich-  337,  343;  33  Am.  Rep.  .390, 
395;  40  Mich.  432. 

Form  of  Contract  does  not  Control. — Aa  observed  above,  the  intent 
of  the  parties  controls.  The  form  of  the  contract  is  consequently  not  conclu- 
sive as  to  the  true  nature  of  the  transaction,  nor,  indeed,  should  much  stress 
be  placed  thereon:  In  re  Green,  7  Biss.  338,  339;  15  Nat.  Bank.  Reg.  198; 
Melchert  v.  Ainerkan  Union  Tel.  Co.,  3  McCrary,  521,  526;  11  Fed.  Rep.  193, 
196;  Bartlett  v.  Smith,  4  Id.  388,  395;  13  Fed.  Rep.  263,  268;  Justh  v.  ffoJli- 
day,  2  Mackey,  346;  Tenny  v,  Foote,  4  111.  App.  594,  599,  affirmed  in  95  HI. 
99,  109;  Beveridge  v.  HevnU,  8  111.  App.  467;  Colderwood  v.  McCrea,  11  Id. 
543;  Cqffman  v.  Toung,  20  Id.  76;  WMtesides  v.  Hunt,  97  Ind.  191,  202;  49 
Am.  Rep.  441,  448;  Gregory  v.  Wendell,  39  Mich.  337;  33  Am.  Rep.  390,  395; 
Barnard  v.  BacJchaus,  52  Wis.  593,  600;  Fortenhury  v.  State,  1  S.  W.  Rep.  58 
(Ark.).  "  It  will  not  do  to  attach  too  much  weight  or  importance  to  the  mere 
form  of  the  instrument,  for  it  is  quite  certain  that  parties  will  be  astute  in 
concealing  their  intention,  and  the  real  nature  of  the  transaction,  if  it  be 
illegal ":  Barnard  v.  BackJiaus,  supra,  per  Cole,  C.  J. 

A  sale  "  short,"  or  in  other  words,  a  sale  of  that  which  the  seller  does  not 
own  or  possess,  but  which  he  expects  to  buy  in  at  a  lower  price  than  that  for 
which  he  sells,  is  not  ipso  /ado  a  wager:  Note  to  Thicker  v.  Hardy,  18  Am. 
Law  Reg.,  N.  S.,  259,  by  Judge  Bennett;  Maxton  v.  Gheen,  75  Pa.  St.  166, 
168;  and  see  the  authorities  cited  supra,  "Vendor  need  not  Own  Property." 
Nor  does  the  fact  that  one  of  the  parties,  generally  the  vendor,  is  given 
an  option  as  to  the  time  of  delivery,  render  the  transaction  objectionable: 
Note  to  Sawyer  v.  Taggart,  18  Am.  Law  Reg.,  N.  S.,  230,  by  Charles  H. 
Wood;  Melchert  v.  American  Union  Tel.  Co.,  3  McCrary,  521,  524;  11  Fed. 
Rep.  193,  195;  Union  National  Bank  v.  Carr,  5  McCrary,  71;  15  Fed.  Rep. 
438;  Gregory  v.  WattouM,  58  Iowa,  711,  713;  WilMamsy.  Tiedemann,  6  Mo. 
App.  269,  273;  Kirkpatrick  v.  Bonsall,  72  Pa.  St.  155;  Wall  v.  Schneider,  59 
Wis.  352;  48  Am.  Rep.  520.  "The  option  as  to  the  time  of  delivery  of  mer- 
chandise purchased  is  not  illegal,  if  there  be  an  agreement  to  make  actual 
delivery.  The  optional  contracts  that  are  void  are  such  as  do  not  contem- 
plate the  actual  delivery  of  the  commodity  purchased,  but  rather  contemplate 
that  the  subject  of  the  contract  is  not  intended  to  be  delivered  ":  Gregory  v. 
Watioioa,  supra.  These  "  time  "  contracts,  where  a  delivery  is  actually  con- 
templated, are  not,  as  seen  above,  within  the  Illinois  statute  prohibiting 
"  options  to  sell  or  buy  ":  WolcoU  v.  Heath,  78  HL  433;  Pickering  v.  Cease,  79 
Id-  328,  330;  Pixley  v.  BoyiUon,  79  Id.  351,  353;  Logan  v.  Mwdck,  81  Id.  416; 


April,  1887.]  Crawford  v.  Spencer.  763 

Corbett  v.  Underwood,  83  111.  324,  330;  25  Am.  Rep.  392,  397;  Cole  v.  Milmine, 
88  Id.  349;  Tenney  v.  Foote,  4  HI.  App.  594,  598,  aflBrmed  in  95  111.  99,  109; 
iVebster  v.  Sturgea,  7  111.  App-  560;  Beveridge  v.  Hewitt,  8  Id.  467;  Colderwood 
V.  McCrea,  11  Id.  543;  Miller  v.  Bensley,  20  Id.  528;  GiUieH  v.  Oaugar,  8Biss. 
214  (C.  C,  N.  D.  of  m.);  althongh  in  Illinois,  as  elsewhere,  if  the  parties  do 
not  intend  a  delivery,  but  simply  contemplate  a  settlement  of  differences, 
such  contracts  are  void  as  wagering  or  gaming  contracts:  Lyon  v.  Ctdberison, 
83  III.  33;  25  Am.  Rep.  349;  Jachton  v.  Foote,  11  Biss.  223;  12  Fed.  Rep.  37 
(C.  C,  N.  D.  of  111.).  "Puts,"  or  privileges  on  the  part  of  sellers  of  deliv- 
ering or  not  delivering,  and  "caUs,"  or  privileges  of  buyers  of  calling  or  not 
calling  for  the  thing  sold,  at  their  option,  are  not  necessarily  invalid:  Note 
to  Thacier  v.  Hardy,  18  Am.  Law  Reg.,  N.  S.,  258;  /»  re  Chandler,  13  Id. 
310,  316;  9  Nat.  Bank.  Reg.  514,  521;  sub  nom.  Ex  parte  Young,  6  Biss.  53, 
66;  Bigelow  v.  Benedict,  70  N.  Y.  202;  20  Am.  Rep.  573;  Williama  v.  Tiede- 
mann,  G  Mo.  App.  2G9,  274;  although  it  seems  they  would  be  under  the  stat- 
ute of  Illinois;  but  see  In  re  Cliandler,  supra.  "That  there  is  an  element  of 
hazard  in  the  contract  is  plain.  But  the  same  hazard  is  incurred  in  every 
optional  contract  for  the  sale  of  any  marketable  commodity,  when,  for  a  con- 
sideration paid,  one  of  the  parties  binds  himself  to  sell  or  receive  the  property 
at  a  future  time,  at  a  specified  price,  at  the  election  of  the  other.  Mercantile 
contracts  of  this  character  are  not  infrequent,  and  they  are  consistent  with  a 
bona  jide  intention  on  the  part  of  both  parties  to  perform  them  ":  Bigelow  v. 
Benedict,  supra.  And  a  " straddle,"  even,  or  the  double  privilege  of  a  "put " 
and  a  "call,"  securing  to  the  holder  the  right  to  buy  of  or  sell  to  another 
something  within  a  certain  time,  at  a  certain  price,  is  not  necessarily  void: 
Harris  v.  Tumbridye,  83  N.  Y.  92;  38  Am.  Rep.  398;  Story  v.  Salomon,  71 
N.  Y.  420,  affirming  6  Daly,  531.  "We  may  guess  that  the  parties  were 
speculating  upon  the  fluctuations  in  the  price  of  the  stock,  and  that  the  de- 
fendant was  not  required  to  take  or  deliver  any  stock  in  any  case,  but  simply 
to  pay  differences.  But  a  contract  which  can  have  legal  interpretation  and 
effect  should  not  be  condemned  without  any  proof,  in  that  way  ":  Story  v. 
Salomon,  supra.  But  in  Kirkpatrick  v.  Bonsall,  72  Pa.  St.  155,  158,  Agnew,  J., 
gives  the  following  observations,  which  may  appropriately  apply  to  all  these 
optional  contracts,  although  referring  to  but  one  kind:  "  It  is  evident  such 
agreements  can  be  readily  prostituted  to  the  worst  kind  of  gambling  ventures, 
and  therefore  its  character  may  be  weighed  by  a  jury,  in  connection  with  other 
facts,  in  considering  whether  the  bargain  was  a  mere  scheme  to  gamble  upon 
the  chance  of  prices.  The  form  of  the  venture,  when  aided  by  evidence,  may 
clearly  indicate  a  purpose  to  wager  upon  a  rise  or  fall  in  the  price  of  oil  at  a 
future  day,  and  not  to  deal  in  the  article  as  men  usually  do  in  that  business. 
We  must  not  confound  gambling,  whether  it  be  in  corporation  stocks  or  mer* 
chandise,  with  what  is  commonly  termed  'speculation.'" 

The  mere  fact,  furthermore,  that  a  margin  is  required  to  be  deposited  as 
security  does  not  make  the  contract  illegal:  Wall  v.  Schneider,  69  Wis.  352; 
48  Am.  Rep.  520;  Whiiesidet  v.  Hunt,  97  Ind.  191,  202;  49  Am.  Rep.  441, 
448;  Early.  Howell,  14  Abb.  N.  C.  474,  476;  Hatch  v.  Douglas,  48  Conn.  116; 
4U  Am.  Rep.  154;  nor  that  delivery  is  to  be  made  in  warehouse  receipts: 
Wall  V.  Schneider,  supra;  Gregory  v.  Wendell,  39  Mich.  337,  340;  33  Am. 
Rep.  390,  392;  nor  because  the  contract  provides  that  the  measure  of  dam- 
ages in  case  of  a  breach  shall  be  the  difference  between  the  contract  price 
and  the  market  price  on  the  chamber  of  commerce  where  the  contract  ia 
made:    Walt  v.  Schneider,  supra. 


764  Crawford  v.  Spencer.  [Missouri^ 

Evidence  of  Illegality  —  Burden  of  Proof.  —  There  is  no  doubt  that 
although  a  contract  is  regular  and  legal  on  its  face,  it  is  competent  to  show 
that  it  was  intended  as  a  mere  gambling  transaction:  Clarke  v.  Foas,  7  Biss. 
640,  551;  Stewart  v.  Schall,  C5  Md.  289;  57  Am.  Rep.  327;  Kent  v.  Milieu- 
berger,  13  Mo.  App.  503;  Beadleav.  McElrcUJi,  3  S.  W.  Rep.  152  (Ky.);  con- 
tra: Porter  V.  Viets,  1  Biss.  177;  and  in  order  to  ascertain  the  intention  of 
the  parties,  it  may  be  shown  how  they  were  in  the  habit  of  dealing  together 
in  respect  to  like  transactions  prior  to  the  one  in  controversy:  Coldertoood  v. 
McCrea,  1 1  III.  App.  543;  but  the  illegality  of  a  contract  cannot  be  estab- 
lished by  proving  the  usual  custom  of  persons  making  such  contracts,  or  a 
general  expectation  or  understanding  that  such  contracts  were  to  be  settled 
without  an  actual  delivery:  Bennett  v.  Covington,  22  Fed.  Rep.  816.  But 
contracts  for  future  delivery  are  presumptively  valid:  Note  to  Cohb  v.  Prell, 
6  McCrary,  90;  22  Am.  Law  Reg.,  N.  S.,  617;  Kent  v.  Miltenherger,  13  Mo. 
App.  503;  Beadles  v.  McElraUi,  3  S.  W.  Rep.  152  (Ky.);  compare  Kirhpat- 
ride  v.  Adams,  20  Fed.  Rep.  287;  and  "in  construing  a  contract,  that  con- 
struction is  to  be  preferred  which  will  support  it,  rather  than  one  which  will 
avoid  it ":  Bigelow  v.  Benedict,  70  N.  Y.  202,  204;  26  Am.  Rep.  573,  575;  Clay 
▼.  Allen,  63  Miss.  426.  The  burden  of  proof  of  establishing  the  illegality  rests 
therefore  upon  the  party  who  asserts  it:  Newmark  on  Sales,  sec.  369;  Clarke 
V.  Foss,  7  Biss.  540,  550;  Bennett  v.  Covington,  22  Fed.  Rep.  816;  Bangs  v. 
Homick,  30  Id.  97,  99;  Ward  v.  Voaburgh,  31  Id.  12;  Pixley  v.  Boynton,  19 
HI.  351,  352;  Whitesides  v.  Hunt,  97  Ind.  191,  210;  Gregory  v.  Wattowa,  58 
Iowa,  711;  First  Nat.  Bank  v.  Oskaloosa  Packing  Co.,  66  Id.  41,  46;  Beadles 
V.  McElrath,  3  S.  W.  Rep.  152  (Ky.);  Conner  v.  Robertson,  37  La.  Ann.  814; 
55  Am.  Rep.  521,  525;  Rumsey  v.  Berry,  65  Me.  670;  Wyman  v.  Fiske,  3 
Allen,  238;  Clay  v.  Allen,  63  Miss.  426;  the  principal  case;  Williams  v.  Tiede- 
mann,  6  Mo.  App.  269;  Kent  v.  Miltenherger,  13  Id.  503;  Tea^dale  v.  McPtkCf 
25  Id.  341;  Mcllvaine  v.  Egerton,  2  Robt.  422;  Dyksra  v.  Toumsend,  24  N.  Y. 
67;  Bigehw  v.  Benedict,  70  Id.  202,  206,  207;  26  Am.  R«p.  573,  576,  577;  Wil- 
Hams  V.  Carr,  80  N.  C.  294,  298,  although  there  are  some  expressions  to  th» 
contrary:  Barnard  v.  BackJiaua,  52  Wis.  593,  599;  Cobb  v.  Prell,  5  McCrary, 
80;  15  Fed.  Rep.  774;  22  Am.  Law  Reg.,  N.  S.,  609;  Stebbins  v.  Lecnoolf,  3 
Cush.  137;  and  see  First  Nat.  Bank  v.  OskaJoosa  Packing  Co.,  supra.  "We 
cannot  assume,"  says  Danforth,  J.,  in  Rumsey  v.  Berry,  supra,  "that  any  one 
has  violated  the  law,  and  been  guilty  of  immoral  and  corrupting  practices  in 
his  business  transactions,  without  proof,  even  though  he  may  ask  it  himself 
for  the  purpose  of  being  relieved  from  the  obligation  of  a  losing  contract." 
Yet,  upon  the  well-settled  doctrine  concerning  negotiable  instruments,  if  the 
illegality  in  the  inception  of  a  promissory  note  be  shown  by  the  maker  in  an 
action  against  him  thereon  by  an  indorsee,  the  burden  is  on  the  j)lainti£f  to 
show  that  he  acquired  the  paper  in  good  faith,  for  value,  in  the  usual  course 
of  business,  and  before  maturity:  Third  Nat.  Bank  v.  Tinsley,  11  Mo.  App. 
498,  502. 

Broker's  Right  to  Commissions  and  Advances.  —  The  right  of  a  broker 
who  negotiates  a  contract  for  future  delivery  to  recover  commissions  and  ad- 
vaaces  from  his  principal  is  of  course  unquestionable  if  the  contract  is  held 
to  be  valid:  See  Roundtree  v.  Smith,  108  U.  S.  269;  Widtesides  v.  Hunt,  97  Ind. 
191,  203;  Teasdale  v.  McPike,  25  Mo.  App.  341;  Smith  v.  Bouvier,  70  Pa.  St. 
325;  Maxton  v.  Oheen,  45  Id.  166;  Powell  v.  McCord,  12  N.  K  Rep.  262  (HI.). 
But  there  is  considerable  difficulty  and  conflict  of  decision  where  the  con- 
tract negotiated  is  invalid.  In  England  it  is  well  settled  that  neither  the 
statute  7  Geo.  IL,  c.  8,  nor  the  statute  7  &  8  Vict.,  c.  109,  sec  18,  heretofore 


April,  1887.]  Crawford  v.  Spencer.  765 

referred  to,  applies  to  claims  by  a  stock-broker  or  share-broker  against  his 
principal  so  as  to  defeat  his  recovery:  2  Addison  on  Contracts,  Abbott's  ed., 
*1157;  Wella  v.  Porter,  3  Scott,  141;  2  Bing.  N.  C.  722;  Jesaopp  v.  Lut- 
wyche,  10  Ex.  614;  Krught  v.  Cambers,  15  Com.  B.  562;  Knight  v.  Fitch,  15  Id. 
566;  Ashton  v.  DaTdn,  4  Hurl.  &  N.  869;  Rosewamev.  BiWng,  15  Com.  B.,  N.  S., 
316;  Thacker  v.  Hardy,  L.  R  4  Q.  B.  D.  685;  Cooper  v.  Ndl,  27  Week.  Rep. 
159,  note;  and  to  the  same  effect,  nnder  the  stock-jobbing  act  of  Massachu- 
setts, see  Wyman  v.  Fiske,  3  Allen,  238;  Durant  v.  Bell,  98  Mass.  161;  but 
see  Stebbina  v.  LeovxtJf,  3  Cusb.  137.  In  a  few  cases  in  this  country  the  bro- 
ker's right  to  recover  has  turned  upon  the  fact  that  the  principal  subse- 
quently executed  his  note  to  the  broker  for  advances  and  commissions  in  the 
illegal  transaction:  Lehman  v.  Strassherger,  2  Woods,  554  (C.  C,  N.  D.  of 
Ala.);  IJenizv.  Jevxll,  4  Id.  656;  20  Fed.  Rep.  592  (C.  C,  S.  D.  of  Miss.);  and 
see  Clarke  v,  Foas,  7  Biss.  540,  653  (D.  C,  W.  D.  of  Wis.);  Hawley  v.  Bibb, 
69  Ala.  52.  "The  contract  between  the  principal  and  agent,  made  after  the 
illegal  transactions  are  closed,  although  it  may  spring  from  them  and  be  the 
result  of  them,  is  a  binding  contract ":  Lehman  v.  Strassherger,  supra;  but 
see  the  language  in  Seeligsonv,  Lewis,  65  Tex.  215,  222;  57  Am.  Rep.  593,  599. 
So  in  Georgia  it  is  held  that  where  the  contract  is  executed,  an  agent  or  broker 
employed  by  the  principal  to  make  it  can  recover  any  money  advanced  in  the 
transaction  by  the  previous  authority  or  subsequent  ratification  of  the  prin- 
cipal: Warren  v,  Hewitt,  45  Ga.  501;  Beard  v.  Btissell,  59  Id.  25;  Cliawpion 
V.  Wilson,  04  Id- 184,  188;  Tliompson  v.  Cummings,  68  Id.  124;  and  this  ruling 
has  been  approved  in  Williams  v.  Carr,  80  N.  C.  294;  but  in  Cunningham  v. 
National  Bank  qf  Augusta,  71  Ga.  400,  405,  51  Am.  Rep.  206,  269,  the  court 
"are  not  prepared  to  say  that  we  will  be  bound  in  the  future  by  the  decis- 
ions last  referred  to."  On  the  other  hand,  in  Wisconsin  and  New  Jersey, 
the  right  of  a  broker  to  recover  for  advances  made  and  services  rendered 
concerning  a  gambling  transaction  is  stringently  denied:  In  re  Oreen,  7  Biss. 
338;  15  Nat.  Bank.  Reg.  198  (D.  C,  W.  D.  of  Wis.);  Bamardv.  Backhaus,  52 
Wis.  593;  Flagg  v.  Baldwin,  38  N.  J.  Eq.  219;  48  Am.  Rep.  308;  In  re  Hunt, 
26  Fed.  Rep.  739  (D.  C,  D.  of  N.  J.);  upon  the  ground  that  contracts  for 
Bale  for  future  delivery,  where  the  parties  contemplate  simply  a  settlement  of 
differcDccs,  are,  nnder  the  general  statutes  relating  to  gaming  "and  wagering, 
not  simply  void,  but  illegal,  and  the  collateral  contracts  between  brokers 
and  principals  are  consequently  affected.  In  New  Jersey  the  further  reason 
is  given  that  ooe  who  enters  into  such  a  speculative  contract  with  a  broker 
Is  to  be  considered  as  dealing  with  him  as  a  principal,  and  not  as  an  agent; 
mndthis  view  is  supported  by  certain  other,  principally  Pennsylvania,  cases: 
Uorth  V.  Phillips,  89  Pa.  St  250;  Ruchizky  v.  De  Haven,  97  Id.  202;  Dickson's 
SscW  V.  Thomas,  97  Id.  278;  Justh  v.  HoUiday,  2  Mackey,  346;  but  compare 
Smithy.  Bouwr,  70 Pa.  St  325;  Maxtonv.  GJiten,  75 Id.  160;  Fardrav.  Oabell, 
89  Id.  89;  but  these  Pennsylvania  cases  are  much  criticised:  Dos  Passos  on 
Stockbrokers,  423-434;  Biddlo  on  Stockbrokers,  305,  317.  In  Illinois,  also,  a 
broker  who  deals  for  his  principal  in  contravention  of  section  130  of  the  Crim- 
inal Code  cannot  recover  his  disbursements  or  commissions:  Coffman  v.  Young, 
20  111.  App.  70;  Tenney  v.  Foote,  4  Id.  694,  aflirmod  in  95  IlL  90;  Pearce  v.  Foote^ 
113  Id,  228;  55  Am.  Rep.  414;  compare  yodtson  v.  FoUe,  11  Biss.  223;  12  Fed. 
Rep.  37  (C.  C,  N.  D.  of  III);  and  the  broker  is  a  "winner"  within  the  mean- 
ing of  section  132  of  the  same  code,  which  permits  an  action  to  recover  back 
from  the  winner  any  money  or  property  paid  on  account  of  a  gambling  trans- 
action: Pearce  v.  Foote,  supra;  McCormick  v.  NichoU,  19  111.  App.  334,  339. 
The  most  satisfactory  doctrine  on  this  qoestion,  however,  and  the  uu« 


766  Crawford  v.  Spencer.  [Missouri, 

which  best  accords  with  principle,  and  is  sustained  by  the  weight  of  aa> 
thority,  in  the  absence  of  some  such  statute  as  that  of  Illinois,  is  that  an- 
nounced by  Mr.  Justice  Matthews,  in  Irwin  v.  WilUar,  110  U.  S.  499,  510. 
"It  is  certainly  true  that  a  broker  might  negotiate  such  a  contract  without 
being  privy  to  the  illegal  intent  of  the  principal  parcies  to  it  which  renders 
it  void,  and  in  such  a  case,  being  innocent  of  any  violation  of  law,  and  not 
suing  to  enforce  an  unlawful  contract,  has  a  meritorious  ground  for  the  re- 
covery of  compensation  for  services  and  advances.  But  we  are  also  of  the 
opinion  that  when  the  broker  is  privy  to  the  unlawful  design  of  the  parties, 
and  brings  them  together  for  the  very  purpose  of  entering  into  an  illegal 
agreement,  he  is  particeps  criminis,  and  cannot  recover  for  services  rendered 
or  losses  incurred  by  himself  on  behalf  of  either  in  forwarding  the  transac- 
tion." See  also  Bartlett  v.  Smith,  4  McCrary,  388;  13  Fed.  Rep.  263  (C.  C,  D. 
of  Minn.);  Cobb  v.  Prell,  5  McCrary,  80;  15  Fed.  Rep.  774;  22  Am.  Law 
Reg.,  N.  S.,  609  (C.  C,  D.  of  Kan.);  KirkpcUrick  v.  Adams,  20  Fed.  Rep. 
287  (C.  C,  W.  D.  of  Tenn.);  Bangav.  Hornkic,  30  Id.  97  {C.  C,  D.  of  Minn.); 
Hatch  V.  Douglas,  48  Conn.  116;  40  Am.  Rep.  154;  First  National  Bank  v. 
Oskaloosa  Packing  Co.,  66  Iowa,  41,  48;  Steioart  v.  ScMll,  65  Md.  289;  57 
Am.  Rep.  327;  the  principal  case;  Crane  v.  Whittemore,  4  Mo.  App.  610;  KerU 
V.  MiUenberger,  13  Id.  503;  Third  National  Bank  v.  Tinsley,  MS.  opinion, 
quoted  3  McCrary,  323;  10  Fed,  Rep.  249;  Marshall  v.  Thruston,  3  Lea,  740; 
Beadles  v.  Otonhy,  16  Id.  424;  Seeligson  v.  Lewis,  65  Tex.  215;  57  Am.  Rep. 
593,  599;  Brown  v.  Speyers,  20  Gratt.  296,  309. 

If  the  transaction  between  broker  and  principal  is  a  gambling  one,  it  would 
seem  clear  that  it  could  not  be  validated  by  any  form  of  authorization  or 
ratification:  McCormick  v.  Nichols,  19  111.  App.  334.  So  where  the  defend- 
ant employed  the  plaintiff  to  buy  and  sell  grain  for  him  in  form  for  future 
delivery,  but  in  fact  no  grain  was  intended  to  be  or  ever  was  received  or  de- 
livered, and  a  dispute  having  arisen  between  the  parties  as  to  who  should 
bear  the  losses  incurred  in  the  speculation,  and  paid  by  the  plaintiff,  it  waa 
agreed  that  part  of  the  losses  should  be  borne  by  the  plaintiff,  and  the  bal- 
ance thereof  should  be  paid  to  him  by  the  defendant,  it  was  held  that  there 
could  be  no  recovery  upon  such  agreement  or  compromise:  Everingham  v. 
Meighan,  55  Wis.  354.  But  where  a  broker  claimed  a  balance  due  him  by 
his  principal  on  account  of  certain  stock  transactions,  and  a  third  party  as- 
sumed and  paid  the  same,  the  principal  cannot  repudiate  a  note  which  he  exe- 
cuted to  the  third  person  therefor,  on  the  ground  that  the  balance  claimed 
by  the  broker  was  due  on  a  gambling  transaction:  Bangs  v.  Homick,  30  Fed. 
Rep.  97.  Where  the  transactions  between  broker  and  principal  are  of  a 
gambling  nature,  the  question  whether  or  not  third  persons  dealing  with  the 
broker  participated  in  the  illegal  intention  is,  it  seems,  immaterial:  Beveridge 
T.  HewiU,  8  IlL  App.  467. 


Oct.  i867.1  Kaes  v.  Gross.  767 

Kaes  V.  Gross. 

[92  MissouEi,  647.] 

Febson  cannot  Lawfully  Hold  Two  Homesteads  at  the  same  time. 

When  Homestead  is  Abandoned,  an  inter  tion  to  return,  by  which  the 
homestead  rights  are  preserved,  must  be  termed  at  the  time  of  removaL 
It  can  have  no  influence  in  restoring  the  right  once  lost  by  actual  aban- 
donment, until  executed  by  actual  resumption  of  occupancy.  A  subse- 
quent unexecuted  intention  to  resume  possession  would  not  restore  the 
right  to  hold  the  homestead  exempt. 

When  Homestead  Right  is  Lost  bt  Abandonment  and  possession  is  again 
resumed,  it  only  gives  origin  to  a  new  homestead  right,  dating  from  the 
new  occupancy,  and  having  no  retroactive  validity  on  the  old  right,  and 
possessing  no  force  against  the  rights  of  third  persons  acquired  in  the 
interim  between  the  loss  of  the  old  and  the  acquisition  of  the  new  right. 

Removal  of  Family  feom  Homestead  constitutes  a  prima  facie  case  of  aban- 
donment, and  raises  a  presumption  against  the  claim  of  homestead,  which 
must  be  rebutted  before  such  claim  can  be  successfully  asserted. 

Length  of  Time  that  Claimant  is  absent  from  homestead  constitutes  an 
important  factor,  in  connection  with  other  facts,  in  determining  whether 
the  aggregate  result  of  all  the  facts  is  sufficient  to  establish  that  a  for- 
feiture of  the  acquired  right  has  occurred. 

Prolonged  Absence  from  Homestead,  lik*  the  removal  of  the  family,  is 
sufficient  to  cast  the  onus  of  rebutting  the  presumption  of  abandonment 
on  the  claimant  of  the  homestead. 

Abandonment  of  Homestead  is  Question  of  Fact,  each  case  resting  npon 
its  own  peculiar  circumstances,  yet  actual  removal  with  no  intention  to 
return  amounts  to  a  forfeiture  of  the  right  as  against  creditors  and  pur- 
chasers, although  no  new  homestead  right  is  acquired. 

Removal  from  Homestead,  coupled  with  the  acquisition  of  a  new  home 
elsewhere,  is  conclusive  proof  of  abandonment  of  the  old  homestead. 

Widow  Residing  upon  her  Homestead,  who  remarries  and  immediately 
removes  with  her  children  and  household  goods  to  the  home  of  her  new 
husband,  without  expressing  an  intention  of  returning  to  her  old  home- 
stead, must  be  considered  as  abandoning  her  old  homestead. 

Widow  Residing  on  Homestead,  Who  Remarries,  is  as  fully  competent  to 
form  an  intention  of  abandonment  of  the  homestead  as  if  she  remained 
single,  and  she  is  as  fully  affected  by  the  usual  unfavorable  presumptions 
attendant  on  removal  and  prolonged  absence  from  her  old  homestead, 
and  is  as  much  bound  to  overcome  such  presumptions,  to  be  successful, 
as  is  any  other  person.  The  acquisition  of  a  new  homestead,  at  the  resi- 
dence of  her  second  husband,  is  conclusive  proof  of  her  abandonment  of 
the  old  one. 

Husband  cannot  bt  Dkvisk,  or  by  his  sole  deed,  convey  or  mortgage  tht 
homestead:  Mo.  R.  S.,  sec.  2689. 

Where  Husband  bt  Will  Devises  Real  Estate  to  his  wife,  which  she 
accepts,  it  must  be  taken  in  lieu  of  dower  out  of  the  lands  of  which  be 
died  seised,  onless  by  his  will  he  otherwise  declared. 

/.  C.  Kiskaddon,  for  the  appellants. 
T.  A.  Lowe,  for  the  respondents. 


768  Kaes  v.  Geo&%  [M?fso\iri, 

By  Court,  Sherwood,  J.  The  object  of  this  Buit  is  the  asser- 
tion of  a  homestead  and  dower  right  on  the  part  of  Emilie 
Kaes  in  certain  property  in  Pacific,  Franklin  County,  Missouri, 
on  the  corner  of  St.  Louis  Street  and  Adelaide  Avenue,  esti- 
mated to  be  worth  from  four  thousand  to  six  thousand  dollars. 

The  petition  was  filed  April  25,  1883,  and  the  trial  oc- 
curred May  30,  1884.  On  June  23,  1874,  Gustavus  Huf- 
Bchmidt,  with  his  family,  lived  on  the  property  in  question  as 
his  homestead.  On  the  date  last  mentioned,  Hufschmidt  and 
his  first  wife  executed  and  delivered  to  Franklin  County  their 
school  mortgage,  conveying  said  property  to  secure  the  pay- 
ment of  the  sum  of  about  one  thousand  dollars.  His  first  wife 
bore  him  several  children,  who,  with  one  exception,  are  still 
minors.  She  died,  and  on  the  4th  of  August,  1875,  Hufschmidt 
married  Emilie,  the  plaintiff,  by  whom  he  had  two  children, 
one  of  whom  is  yet  living;  they,  the  children  of  the  first  and 
second  marriages,  and  Hufschmidt  and  wife,  all  continued  to 
live  at  the  homestead  till  September,  1879,  when  Hufschmidt 
died,  having  shortly  theretofore  made  his  will,  as  follows:  — 

"1.  I  give  and  bequeath  to  my  beloved  wife,  Emilie  L. 
Hufschmidt,  the  'life  insurance,'  which  I  have  in  the  orders  of 
the  *Odd  Fellows'  and  'Free  Masons,' in  the  state  of  Missouri. 

"  2.  I  give  and  bequeath  to  my  beloved  wife,  E.  L.  Huf- 
schmidt, the  use  and  income  of  my  house  and  property  on  the 
corner  of  St.  Louis  Street  and  Adelaide  Avenue,  in  the  town 
of  Pacific,  county  of  Franklin,  and  state  of  Missouri,  so  long 
till  the  youngest  of  the  children  of  my  first  wife,  Amelia  Huf- 
schmidt, deceased,  shall  become  of  age,  or  when  the  said  chil- 
dren of  my  first  wife,  deceased,  can  agree  with  my  beloved 
wife,  Emilie  L.,  to  sell  the  aforesaid  property,  including  the 
house. 

"  3.  After  such  sale,  the  whole  amount  so  realized  shall  be 
divided  into  eight  equal  shares  or  parts,  so  that  each  of  the 
seven  children  left  by  my  first  wife,  deceased,  viz.,  Frank, 
Emma,  Otto,  Fritz,  Augusta,  George,  and  Alice,  and  Louisa, 
the  only  child  with  my  present  wife,  shall  receive  one  share  or 
part.  Should,  however,  any  of  these  die  before  such  division 
is  made,  without  leaving  any  heir  or  heirs,  then  the  amount 
shall  be  divided  into  so  many  shares  or  parts  as  are  left. 

"  4.  For  the  use  and  income  of  the  aforementioned  property, 
house  and  lot,  on  St.  Louis  Street  and  Adelaide  Avenue,  Pacific, 
Missouri,  my  beloved  wife  shall  pay  the  interest  of  my  debts, 
and  keep  the  premises  in  good  order,  and  raise  the  minor  chil- 


Oct.  1887.]  Kaes  v.  Gboss.  769 

<^en  until  they  become  of  age;  but  for  this  she  shall  have 
also  the  use  of  all  the  furniture. 

"  5.  All  of  my  other  real  estate,  consisting  of  six  lots  and 
house,  in  \V.  C.  Ink's  addition  to  Pacific,  and  a  tract  of  land 
of  thirteen  and  twenty-five  hundredths  acres,  between  the 
Missouri  Pacific  Railroad  and  Brush  Creek,  in  Keathy's  Addi- 
tion to  the  town  of  Pacific,  Missouri,  my  beloved  wife  shall 
sell  to  the  best  advantage,  to  settle  and  pay  my  contingent 
debts. 

"  6.  Emilie  L.  Hufschmidt,  appointed  sole  executrix.  Dated 
July  29,  1879." 

This  will  having  been  probated,  Mrs.  Hufschmidt,  the  ex- 
ecutrix, declined  in  writing,  in  proper  manner,  to  execute  the 
will,  whereupon  William  Meyersick  was  granted  letters  tes- 
tamentary with  the  will  annexed.  From  the  life  insurance 
policies  thus  bequeathed  her,  and  rents  of  the  premises,  Mrs. 
Hufschmidt  received  about  four  thousand  five  hundred  dollars 
in  cash,  and  some  $385  worth  of  household  goods  and  furni- 
ture, as  well  as  enjoyed  the  house  rent  free,  till  August  20, 
1880,  when,  wearying  of  widow's  weeds,  she  married  her  co- 
plaintiflf,  Phillip  Kaes,  and  on  the  second  day  afterwards  re- 
moved with  her  family  of  minor  children,  and  newly  wedded 
eonjuxy  to  his  house  in  St.  Louis  County,  where  she  continu- 
ously lived  up  to  the  time  of  the  trial,  having  taken  with  her 
most  of  the  beds  and  other  furniture,  —  selling  a  portion  of  it, 
and  leaving  the  rest  with  an  adult  son  of  her  husband  by  his 
first  wife,  who  had  occupied  the  house  with  her,  and  who  after- 
wards sent  to  his  step-mother  a  portion  of  the  goods  thus  left 
in  bis  care. 

The  testimony  of  Mrs.  Kaes,  as  to  her  intention  in  remov- 
ing, is  expressed  in  this  language:  "  I  did  not  leave  any  of 
the  goods  there  for  the  purpose  or  with  the  intention  of  return- 
ing; had  no  special  intention  of  returning  when  I  left,  I  still 
live  in  St.  Louis  County  with  my  husband;  do  not  wish  to  oc- 
cupy this  property  with  my  husband,  and  live  in  it.  I  can't 
say  that  I  do  intend  to  return  to  it,  and  don't  say  that  I  do 
not;  can't  say  that  I  would  occupy  the  property  should  Mr. 
Gross  give  me  the  privilege;  I  would  have  to  see  Mr.  Kaes 
first.  I  don't  want  rent;  I  want  Mr.  Gross  to  pay  me  that 
what  I  claim  as  my  homestead.  I  do  not  know  how  much  it 
it  is;  I  have  not  made  the  calculation." 

About  four  thousand  dollars,  including  the  school  mortgage 
debt,  was   proved   and  allowed  against  the  estate  of   Huf' 

kiL.  St.  £ir.,  Vol.  L— 49 


770  Kaes  v.  Gross.  [Missouri, 

Bchmidt,  after  Meyersick  took  it  in  charge;  and  he,  after  sell- 
ing some  other  lands,  obtained  a  general  order  for  the  sale  of 
the  land  in  dispute,  as  well  as  two  other  lots  for  the  payment 
of  debts,  and  at  the  first  sale,  in  June,  1881,  the  property  was 
struck  oflf  to  Mrs.  Kaes  for  $1,725;  but  this  sale  being  disap- 
proved, the  administrator  sold  the  property  mentioned  for 
$3,800,  in  September,  1881,  which  sale  was  approved  by  the 
court,  and  a  deed  was  made  to  defendant  Gross,  March  10, 
1882,  who  thereupon  took  possession  of  the  property  and 
leased  portions  of  the  same  to  his  co-defendants.  Meyersick, 
the  administrator,  having  paid  off  the  unsecured  debts  with 
the  money  thus  realized,  satisfied  the  school  mortgage  afore- 
said, and  had  it  so  entered  on  the  record. 

At  the  close  of  the  evidence,  the  court  refused,  on  the  re- 
quest of  plaintiffs,  to  give  a  declaration  of  law  in  these 
words:  — 

"If  the  court  believes,  from  the  evidence,  that  Gustavua 
Hufschmidt,  in  his  lifetime,  was  a  housekeeper  and  head  of  a 
family,  and  that  the  plaintiff,  Emilie  Kaes,  was  his  wife,  and 
that,  together  with  their  children,  they  occupied  and  resided 
upon  the  premises  described  in  the  petition  as  being  at  the 
corner  of  St.  Louis  Street  and  Adelaide  Avenue  as  their  home, 
and  that,  while  so  occupying  and  residing  upon  said  premises, 
the  said  Gustavus  Hufschmidt  died,  then  a  homestead  in 
said  premises,  instantly  upon  the  death  of  said  Hufschmidt, 
vested  in  the  plaintiff  for  life,  and  the  court  will  so  find;  and 
the  defendants  have  introduced  no  evidence  in  this  case  tend- 
ing to  defeat  said  claim." 

And  gave,  at  the  instance  of  defendants,  the  following 
declaration:  — 

"  Although  the  court,  sitting  as  a  jury,  may  find  from  the 
evidence  that  Gustavus  Hufschmidt  was,  in  his  lifetime,  a 
housekeeper  and  head  of  a  family,  and  that  the  plaintiff, 
Emilie  Kaes,  was  his  wife,  and  that,  together  with  their  chil- 
dren, they  occupied  and  resided  upon  the  premises  described 
in  the  petition  as  being  on  the  corner  of  St.  Louis  Street  and 
Adelaide  Avenue  as  their  house,  and  that,  while  so  occupying 
and  residing  upon  said  premises,  the  said  Gustavus  Huf- 
schmidt died,  yet,  if  the  court  shall  further  find  from  the 
evidence  that  about  the  twenty-fifth  day  of  August,  1880,  the 
plaintiff  intermarried  with  one  Phillip  Kaes,  and  immediately 
removed  with  her  said  husband  to  his  homestead  in  St.  Louis 
Uouuty,  taking  with  her  all  her  household  goods,  beds,  bed- 


Oct.  1887.]  Kaes  v.  Gross.  771 

ding,  and  furniture,  and  that  she  left  said  property  and  home 
of  her  former  husband  with  no  intention  of  returning  thereto, 
and  ever  since  she  removed  to  the  homestead  of  her  second 
husband  she  has  continued  to  reside  thereon  with  him,  and 
did,  at  the  time  of  the  commencement  of  this  suit,  and  does 
now,  reside  with  him  on  said  new  homestead,  then  she  aban- 
doned said  homestead  of  her  first  husband,  Gustavus  Huf- 
Bchmidt;  and  if  the  court  shall  further  find  that  William 
Meyersick  became  administrator  with  the  will  annexed  of 
said  Gustavus  Hufschmidt,  after  the  said  abandonment,  and 
sold  said  old  homestead  for  the  payment  of  debts,  and  convey- 
ing the  same  by  proper  deed  of  conveyance  to  the  defendant 
about  1883,  and  that  he  went  into  possession  and  now  oc- 
cupies said  premises  under  said  sale  and  purchase,  then  the 
judgment  should  be  for  the  defendant." 

1.  If  the  declaration  of  law  which  the  court  gave  was  cor- 
rect, it  is  quite  unnecessary  to  examine  any  other  points  in 
this  case,  so  far,  at  least,  as  a  homestead  right  is  concerned. 
It  is  quite  certain  that  Mrs.  Kaes  acquired  a  new  homestead 
at  the  domicile  of  her  present  husband.  It  is  equally  certain 
that  she  could  not  lawfully  have  two  homesteads  at  the  same 
time,  any  more  than  she  could  lawfully  have  two  husbands  at 
the  same  time.  And  it  is  said  that  "  the  intention  to  return, 
by  which  the  homestead  rights  are  preserved,  must  be  formed 
at  the  time  the  removal  occurs.  It  can  have  no  influence  what- 
ever in  restoring  the  right  once  lost  by  actual  abandonment 
until  executed  by  an  actual  resumption  of  occupancy."  And 
a  subsequent  unexecuted  intention  to  resume  possession  would 
not  have  the  effect  to  restore  the  right  to  hold  the  homestead 
exempt.  If  such  right  be  once  lost,  and  possession  of  the 
homestead  be  again  resumed,  such  resumption  of  possession 
will  only  have  the  effect  of  giving  origin  to  a  new  homestead 
right,  bearing  date  from  the  new  occupancy,  and  having  no 
retroactive  validity  on  the  old  right  lost  by  abandonment,  and 
possessing  no  force  against  the  rights  of  third  persons  acquired 
in  t!io  interim  between  the  loss  of  the  old  and  the  acquisition 
of  the  new  right. 

And  it  has  been  ruled,  by  a  court  very  liberal  in  the  preser- 
vation of  homestead  rights  once  acquired,  that  the  removal  of 
a  family  from  the  homestead  constitutes  a  prima  facie  case  of 
abandonment,  and  raises  a  presumption  against  the  claim 
of  homestead,  which  must  be  rebutted  before  such  claim  can 
Buccessfully  be  asserted;  e.  g.,  that  the  removal  was  only  ten*- 


772  Kaes  v.  Gross.  [Missouri, 

porary  in  its  nature,  for  some  specific  purpose,  and  with  the 
coincident  intention  of  reoccupancy.  And  while  the  law  does 
not  intend  that  the  homestead  shall  be  converted  into  a  prison, 
by  making  the  continuous  personal  occupancy  of  the  premises 
the  absolute  basis  upon  which  the  homestead  right  is  depend- 
ent, yet  it  cannot  be  doubted  that  the  length  of  time  that  the 
claimant  is  absent  from  his  locus  in  quo  will  constitute  an  im- 
portant factor,  in  connection  with  other  circumstances,  in  de- 
termining whether  the  aggregate  result  of  all  the  facts  is 
sufl&cient  to  establish  that  a  forfeiture  of  the  acquired  right 
has  occurred,  by  reason  of  abandonment.  Prolonged  absence 
from  the  homestead,  like  a  removal  of  the  family,  is  suflBcient 
to  cast  the  onus  of  rebutting  the  presumption  of  abandonment 
on  the  claimant  of  the  homestead.  Though  the  authorities 
generally  agree  that  abandonment  is  a  question  of  fact,  and 
that  each  case  rests  upon  its  own  peculiar  circumstances,  yet, 
for  the  most  part,  they  agree  that  actual  removal  from  the 
homestead,  with  no  intention  to  return,  amounts  to  a  forfeiture 
of  the  right  as  against  creditors  and  purchasers,  although  no 
new  homestead  be  acquired.  There  is  one  act,  however,  on 
the  part  of  the  claimant,  whereby  the  allegation  of  abandon- 
ment may  be  conclusively  proved,  and  that  is,  removal  coupled 
with  the  acquisition  of  a  new  home  elsewhere.  The  positions 
here  taken  are  abundantly  supported  by  authority:  Thompson 
on  Homesteads,  sees.  259,  265,  267,  272,  279,  285;  Smith  v. 
Bunn,  75  Mo.  559. 

Summarizing  the  facts  in  this  case,  we  find  a  homestead 
right  acquired,  and,  after  such  acquisition,  the  death  of  the 
husband;  the  remarriage  of  the  wife;  the  almost  immediate 
removal  of  herself,  children,  and  household  goods  to  the  home 
of  her  present  husband,  in  another  county,  where  they  have 
continuously  resided  ever  since,  a  period  of  nearly  four  years 
at  the  time  the  trial  occurred,  and  that  Mrs.  Kaes,  when  so 
removing,  had  no  "  special  intention  of  returning."  If  Mrs. 
Kaes  had  been  sui  juris  at  the  time  the  removal  from  the  old 
homestead  occurred,  there  could  be  no  room  to  doubt  that  the 
usual  rule,  as  to  the  animus  revertendi  at  the  time  of  removal, 
should  dominate  as  well  in  her  case  as  in  any  other:  Wright 
v.  Dunning,  46  111.  271. 

I  find  no  authority  in  point,  and  this  case  is  one  of  first  im- 
pression as  to  the  efiect  of  the  removal  of  a  widow  who  has 
remarried,  and,  with  her  family  and  household  goods,  has  re- 
moved without  intention  of  returning;   but  inasmuch  as,  in 


Oct.  1887.]  Kaes  v.  Gross.  773 

regard  to  a  homestead,  a  widow  with  a  family,  as  in  this  case, 
cannot  alienate  the  homestead;  inasmuch  as,  between  herself 
and  her  children,  it  is  indivisible,  and  must  so  remain  till 
the  youngest  child  becomes  of  age;  inasmuch  as  such  home- 
stead is  not  subject  to  the  laws  relating  to  devises;  inasmuch 
as  a  widow  thus  circumstanced  could  not  if  she  would,  by 
joining  with  her  second  husband,  convey  the  homestead  away; 
and  inasmuch,  in  consequence  of  all  these  matters,  she  is,  in 
BO  far  as  concerns  her  homestead,  independent  of  her  recently 
married  husband, — I  can  discover  no  sound  reason  why  in- 
tention, or  lack  of  intention,  of  removal  should  not  count  for 
as  much  where  she  remarries  as  where  she  remains  unmarried. 
This  must  be  so,  or  else  it  must  be  true  that  a  widow,  by  re- 
marrying and  thus  creating  her  own  disability,  could  remove 
from  her  old  homestead,  and  being  incapable  of  forming  any 
intention  in  regard  to  abandonment,  could  have  that  question 
indefinitely  postponed,  and  she  be  at  liberty,  after  a  lapse  of 
many  years,  to  resume  possession  of  her  old  homestead,  re- 
gardless of  whatsoever  rights  may  meanwhile  have  intervened. 
It  seems  to  me  that  the  whole  reason  and  policy  of  the  law 
in  regard  to  homesteads,  and  in  regard  to  the  speedy  settle- 
ment of  estates,  forbid  any  such  construction.  Such  a  con- 
struction would  convert  what  a  benignant  law  has  designed 
for  a  shield  into  a  sword.  I  am  therefore  of  opinion  that  a 
feme,  situated  as  was  Mrs.  Kaes,  was  as  fully  competent  to 
form  and  execute  an  intention  of  abandoning  her  homestead 
as  though  she  had  remained  unmarried.  Moreover,  as  her  re- 
marriage and  removal  were  almost  concurrent  acts,  it  is  not 
an  unreasonable  inference  that  she  formed  the  intention  of 
abandonment  of  her  old  homestead  prior  to  the  time  that 
she  became  for  the  second  time  a  worshiper  at  the  shrine  of 
Hymen. 

And  for  like  reasons,  as  those  already  given,  I  do  not  see 
why  Mrs.  Kaes  should  not  be  as  fully  afiected  by  the  usual 
unfavorable  presumptions  attendant  on  removal  and  pro- 
longed absence  from  her  old  homestead,  and  bo  equally 
bound  to  overcome  such  presumptions,  in  order  to  bo  suc- 
cessful, as  would  any  other  person  whatsoever.  Nor  do  I  see 
why  the  effect  of  her  acquisition  of  a  new  homestead  at  the 
residence  of  her  second  husband  should  not  be  as  conclusive 
upon  her  as  it  would  be  in  any  other  case;  for  certainly,  the 
whole  theory  of  the  law  is  repugnant  to  the  idea  of  two  home- 
Bteads  being  in  existence  at  the  same  time:   Thompson  on 


774  Kaes  v.  Gross.  [Missouri, 

Homesteads,  see.  279;  Smith  v.  Bunn,  supra.  And  that  law 
apparently  makes  no  distinction,  and  is  no  respecter  of  per- 
sons in  this  regard,  whether  laboring  under  or  free  from  the 
fetters  of  coverture.  If  Mrs.  Kaes  be  not  thus  concluded  by 
her  acquisition  of  a  new  homestead,  then  it  would  follow, 
leaving  out  of  consideration  the  questions  of  intention  and 
prolonged  absence,  that  though  she  has  not  lost  the  old,  yet 
ehe  has  gained  a  new  homestead,  and  is  now  the  fortunate 
possessor  of  homestead  rights  in  duplicate,  which  is  an  impos- 
sible supposition.  For  these  reasons,  I  am  of  the  opinion  that 
the  trial  court  correctly  refused  the  declaration  of  law  asked 
by  plaintiffs,  and  correctly  gave  that  asked  by  defendants. 

2.  I  have  purposely  refrained  from  discussing  the  question 
of  the  effect  of  the  will  on  the  homestead,  and  have  made  this 
case  turn  on  the  points  set  forth  in  the  preceding  paragraph. 
My  reasons  for  doing  so  are  these:  I  am  persuaded  that  the 
will  has  no  bearing  on  this  case.  Section  2693,  Revised  Stat- 
utes, expressly  excepts  the  homestead  out  of  the  laws  relating 
to  devises.  This  exception  is  in  marked  contrast  to  the  pro- 
visions respecting  dower  in  real  estate;  for  there,  when  the 
husband,  by  will,  passes  any  real  estate  to  the  wife,  "such 
devise  shall  be  in  lieu  of  dower  out  of  the  real  estate  .... 
whereof  he  died  seised,  ....  unless  the  testator,  by  his  will, 
otherwise  declared":  R.  S.,  sec.  2199.  And  section  2200  re- 
-quired  the  wife,  if  she  refuses  to  take  under  the  will,  to  file 
lier  renunciation  within  twelve  months  from  the  probate  of 
the  will.  There  is  no  such  provision  respecting  renunciation 
or  election  as  to  a  homestead;  and,  as  already  seen,  it  is  en- 
tirely beyond  the  power  of  the  husband  to  devise  the  home- 
stead, as  much  so  as  by  his  sole  deed  to  convey  or  mortgage 
the  homestead:  R.  S.,  sec.  2689. 

As  the  law  excepts  the  homestead  out  of  the  law  of  devises, 
it  is  not  to  be  presumed  that  the  husband,  in  this  case,  in- 
tended to  go  counter  to  express  statutory  provisions,  and  if  he 
did,  his  will  must  yield  to  the  will  of  the  legislature.  The 
very  fact,  standing  alone,  that  the  legislature  has  made  no 
provision  for  election  or  renunciation  regarding  a  homestead, 
is  very  strong  evidence  indeed;  but  where  this  fact  is  coupled 
with  the  other  already  noted,  that  the  homestead  is  excepted 
out  of  the  law  of  devises,  they  form,  as  I  think,  a  conclusive 
argument  against  the  power  of  the  husband  by  his  will  to  put 
his  wife  to  her  election  in  regard  to  her  homestead.  Reasoning 
thus,  I  am  of  the  opinion  that  the  case  of  Davidson  v.  Davis, 


Oct.  1887.]  Kaes  v.  Gross.  775 

86  Mo.  440,  which  lays  down  a  rule  contrary  to  the  views  here 
expressed,  should  not  be  longer  followed,  as  the  effect  thereof 
is  to  nullify  the  statute.  To  illustrate  this  idea  in  a  very 
pointed  way,  take  the  case  of  a  widow  left  with  a  family  of 
minor  children,  and  for  her  benefit  provision  has  been  made 
by  will;  she  accepts  the  provisions  of  the  will,  and  still  remains 
with  her  children  in  possession  of  the  homestead.  Her  chil- 
dren, being  minors,  cannot  assent  to  anything,  and  cannot  be 
ousted,  and  bo  the  widow,  notwithsanding  the  case  cited,  takes 
both  under  the  will  and  under  the  law.  This  illustration,  in 
my  opinion,  shows  the  utter  fallacy  of  the  reasoning  of  the  case 
cited. 

3.  Touching  the  question  of  dower,  it  is  settled  adversely  to 
the  contention  of  plaintiffs,  by  the  will,  by  the  statute  already 
cited,  and  by  numerous  decisions  of  this  court:  Dougherty  v. 
Barnes,  64  Mo.  159;  Gant  v.  Henly,  64  Id.  162. 

The  judgment  should  be  aflBrmed.  As  to  paragraph  2, 
Norton,  C.  J.,  expresses  no  opinion,  and  he  and  the  other 
judges  concur  on  all  the  other  points. 

Person  cannot  Hold  Two  Houesteads  at  the  same  time:  Wright  v. 
Dunning,  92  Am.  Dec.  257. 

Abandonment  of  Homestead:  See  note  to  Taylor  v.  Hargoua,  CO  Am. 
Dec.  C07-C15,  treating  the  questions  discussed  in  the  principal  case. 

Intention  to  Return  must  Exist  at  Time  of  Removal  from  the  home- 
stead; if  formed  later,  it  will  be  of  no  avail:  Note  to  Taylor  v,  Ilargous,  60 
Am.  Dec.  608;  Fyfe  v.  Been,  85  Id.  577.  In  Shepherd  v.  Caasidy,  70  Id. 
372,  and  note  374,  it  is  held  that  the  intention  to  abandon  may  be  changed 
at  any  time  before  a  new  homestead  is  acquired. 

Removal  from  Homestead  as  Evidencjb  of  abandonment:  Cabeen  v.  Mtil- 
ligan,  87  Am.  Dec.  247,  and  note  249. 

Whether  Removal  from  Homestead  Constitutes  Abandonment  de- 
pends upon  the  facts  in  each  case:  Fyffe  v.  Beers,  85  Am.  Dec.  577,  and  note 
682,  showing  that  the  length  of  time  the  claimant  is  absent  should  be  con- 
sidered in  deciding  the  question. 

Actual  Removal  from  Homestead,  with  no  intention  of  returning,  is  a 
forfeiture  of  the  homestead  right:  Fyffe  v.  Beers,  85  Am.  Dec  577. 

Removal  from  Homestead,  and  acquisition  of  a  new  home,  is  a  forfeiture 
of  the  old  homestead  right:  W rigid  v.  Dunning,  92  Am.  Dec  257;  note  to 
Cabeen  v.  Mulligan,  87  Id.  249. 

Homestead  mat  bx  Abandoned  bt  Widow  under  no  disability,  after  the 
death  of  her  husband,  in  the  same  manner  as  he  could  have  done:  WriglU  v. 
Dunning,  92  Am.  Dec.  257,  and  note  262. 

Husband  cannot  Alienate  Homestead  by  deed  or  mortgage:  Larton  v. 
Reynolds,  81  Am.  Dec.  444,  and  note  461;  nor  by  will:  Hendrixv.  Seaborn, 
60  Am.  Rep.  907. 

Wife,  wheh  Required  to  Elect  between  bequest  and  dower:  Lewi»  t. 
Smith,  61  Am.  Dec  706.  and  note  716. 


776         Union  Savings  Association  v.  Seligman.     FMissouri, 
Union  Savings  Association  v.  Seligman. 

r92  Missouri,  635.J 

One  P0E3  NOT  Become  Liable  as  Stockholder  in  Corporation  by  th» 
issuing  to  him  by  the  corporation  of  stock,  when  the  entry  in  the  stock- 
book,  and  all  the  other  records  of  the  corporation,  show  that  such  stock 
was  issued  as  collateral  security.  To  make  one  answerable  as  a  stock- 
holder to  creditors  of  a  corporation,  he  must  be  a  stockholder  as  between 
himself  and  the  corporation. 

EsTOPiftL.  —  Voting  as  a  stockholder  at  an  election  will  not  estop  the  per- 
son voting  from  showing,  in  an  action  against  him  by  the  creditors  of 
the  corporation,  that  he  was  not  a  stockholder  therein. 

Act  of  Voting  Stock  does  not  Make  Voters  Absolute  Stockholders, 
either  as  between  themselves  and  the  corporation,  or  creditors  of  the 
corporation.  They  are  still  entitled  to  show  that  they  held  such  stock 
as  collateral  security,  and  not  otherwise. 

/.  0.  Broadheadf  for  the  appellants. 

Botsford  and  Williams^  and  Joseph  Shippen,  for  the  respond- 
ent. 

By  Court,  Henry,  J.  This  is  a  proceeding  by  motion  in 
the  St.  Louis  circuit  court  for  execution  against  Seligman  as 
a  stockholder,  on  a  judgment  in  favor  of  plaintiflf,  against  the 
Memphis,  Carthage,  and  Northwestern  Railroad  Company,  an 
execution  having  issued  thereon  against  said  company,  on 
which  a  return  of  nulla  bona  was  made.  Defendant  resisted 
the  motion,  on  the  ground  that  he  was  never  a  stockholder  in 
said  company,  and  this  is  the  only  question  which  it  is  neces- 
sary to  consider.  The  cause  was  tried  upon  an  agreed  state- 
ment of  facts,  and  plaintiff  succeeded  in  his  motion  in  the 
circuit  court,  and  again  in  the  court  of  appeals,  to  which  the 
cause  was  appealed,  and  from  the  judgment  of  the  latter  court 
defendant  has  appealed  to  this  court. 

The  facts  are  substantially  the  following:  The  Memphis,. 
Carthage,  and  Northwestern  Railroad  Company,  a  corporation 
organized  under  the  laws  of  the  state,  with  an  authorized  cap- 
ital of  ten  million  dollars,  entered  into  a  contract,  in  writing, 
with  J.  and  W.  Seligman,  on  the  10th  of  March,  1872,  in  which 
it  was  agreed  that  the  railroad  company  should  furnish  the 
capital  necessary  to  a  complete  preparation  of  the  road  for  iron, 
and  would  execute  and  deposit  with  the  Seligmans  its  entire 
issue  of  first-mortgage  bonds,  viz.,  five  million  dollars,  and 
a  majority  of  their  capital  stock,  the  said  stock  to  remain  in 
the  control  of  the  Seligmans  for  one  year  at  least.  The  Selig- 
mans agreed  to  purchase  two  thousand  tons  of  iron  under  the 


April,  1887.]    Union  Savings  Association  v.  Seligman.      777 


direction  of  the  railroad  company,  and  from  time  to  time  to 
make  advances  of  cash,  during  the  progress  of  the  work  on 
the  road,  not  exceeding  two  hundred  thousand  dollars,  includ- 
ing amount  paid  for  iron,  and  to  receive  interest  thereon  at  the 
rate  of  seven  per  cent  per  annum,  until  reimbursed  by  a  sale 
of  bonds.  For  twelve  months  they  were  also  to  have  the  priv- 
ilege of  purchasing  any  portion  of  the  five  million  dollars  of 
bonds  at  the  rate  of  seventy  cents,  and  accrued  interest,  less 
two  and  a  half  per  cent;  and  if  more  bonds  were  sold  than 
enough  to  iron  the  road,  they  were  to  advance  money  to  pur- 
chase rolling  stock,  two  thousand  dollars  per  mile,  the  balance 
to  remain  on  deposit  with  them,  on  interest  at  the  rate  of  call 
loans,  to  pay  any  deficiency  in  the  net  earnings  of  the  road  to 
meet  interest  on  the  bonds. 

If  the  bonds,  or  part  of  them,  could  not  be  negotiated  dur- 
ing the  next  twelve  months,  the  company  was  to  repay  them 
all  money  advanced  by  them,  with  interest  at  seven  per  cent 
per  annum,  and  two  and  a  half  per  cent  commission  on  all 
bonds  returned.  On  the  1st  of  May,  1872,  the  company  exe- 
cuted a  deed  of  trust  on  its  railroad  and  appurtenances,  to 
Jesse  Seligman  and  John  H.  Stewart,  as  trustees  to  secure 
said  bonds;  and  in  pursuance  of  the  agreement  and  an  order 
of  the  board  of  directors  of  said  company,  a  certificate  for 
sixty  thousand  shares  of  its  stock  was  issued  to  J.  and  W. 
Seligman.  The  stock-transfer  book  of  the  company,  which 
it  was  required  to  keep  by  law,  contained  the  list  of  stock- 
holders, and  the  stock  issued  to  the  Seligmans  was  entered 
therein  as  follows:  — 


Names. 
J.  and  W.  Seligman. 


Residence. 
New  York. 


Date. 
Dec  20,  1872. 


No.  of  Shares. 

60,000. 

Sixty  thousand 
held  in  escrow. 


Amount  in 
dollars. 

(6,000,000 
Six  millions. 


In  March,  1873,  and  again  in  March,  1874,  at  an  election 
for  directors  of  said  company,  the  stock  held  by  the  Selig- 
mans was  voted  at  the  first  election  by  one  Brown,  and  at  the 
eecond  by  H.  T.  Blow,  as  proxies,  and  at  the  election  in  1874, 
Joseph  Seligman,  one  of  the  firm  of  J.  and  W.  Seligman, 
was  elected  a  director.  The  plaintiff's  judgment  was  obtained 
on  a  note  for  $6,339,  dated  November,  1872,  —  after  the 
$6,000,000  of  stock  was  issued  to  the  Seligmans,  but  before 
any  other  act  was  done  by  them  which  could  possibly  bo 
relied  upon  as  an  estoppel. 


778         Union  Savings  Association  v.  Seliqman.    [Missouri, 

The  simple  act  of  accepting  that  certificate  of  stock,  under 
an  agreement  in  writing,  which,  as  also  the  entry  of  the  stock 
in  the  stock-book,  the  other  records  of  the  company,  relating 
to  the  transaction,  showed  that  it  was  held  by  them  only 
as  collateral  security,  does  not  make  them  liable,  as  stock- 
holders, either  to  the  corporation  or  its  creditors.  As  long  as 
they  held  the  stock  under  that  agreement,  doing  no  other  act, 
their  liability  to  creditors  depended  upon  their  legal  relation 
to  the  company.  If  stockholders,  as  between  themselves  and 
the  corporation,  they  would  be  liable  as  such  to  creditors 
of  the  corporation;  otherwise  not:  Burgess  v.  Seligman,  107 
U.  S.  20. 

The  only  ground  upon  which  the  defendant  can  be  held 
liable  as  a  stockholder  is  that  of  estoppel,  and  the  act  relied 
upon  as  creating  it  is  that  of  voting  the  stock  at  elections  of 
directors  of  the  company.  Waiving,  for  the  present,  a  dis- 
cussion of  the  question  as  to  the  right  of  the  Seligmans  to 
vote  the  stock,  that  act  did  not  change  their  relation  to  the 
corporation.  That  was  fixed  by  the  written  agreement,  and 
the  single  act  of  voting  the  stock  affords  no  ground  for  an 
inference  that  that  agreement  had  been  modified;  and  the 
supreme  court  of  the  United  States,  in  the  case  of  Burgess  v. 
Seligman,  supra,  seems  to  hold  that  in  no  case  can  one  be 
held  as  a  stockholder  by  a  creditor  of  the  corporation,  unless 
the  facts  are  such  that  he  could  be  so  held  by  the  corporation 
itself.  "  The  line  of  authorities  usually  quoted  to  show  that 
those  who  actually  hold  stock,  and  who  manifest  a  voluntary 
or  intentional  holding,  by  voting  on  it  [are  liable,  as  stock- 
holders, to  creditors  of  the  corporation],  ....  consists 
mainly  of  cases  in  which  parties  have  been  held  as  cor- 
porators or  associates  as  between  themselves  and  the  corpo- 
ration, or  joint-stock  association,  and  as  such,  incidentally 
liable  to  the  creditors  of  such  companies."  I  have  supplied 
the  words  included  in  brackets  in  the  foregoing  paragraph  of 
the  opinion  delivered  by  Mr,  Justice  Bradley,  in  Burgess  v. 
Seligman,  supra. 

The  cases  cited  in  the  opinion  delivered  by  this  court,  in  the 
case  of  Griswold  v.  Seligman,  72  Mo.  110,  are  all  cases  in 
which  the  facts  were  such  that  the  persons  sought  to  be 
charged  as  stockholders  were  held  to  be  stockholders  as  be- 
twixt themselves  and  the  corporation.  In  many  of  the  cases, 
suits  were  instituted  by  the  corporation  against  individuals, 
alleging  that  they  were,  and  seeking  to  charge  them  as  stock- 


April,  1887.]    Union  Savings  Association  v.  Seligman.     779 

holders.  In  none  of  the  cases  cited  in  that  opinion  was  there, 
as  in  this,  a  special  agreement,  showing  exactly  what  relation 
the  parties  alleged  to  be  stockholders  bore  to  the  corporation. 
The  cases  of  Upton  v.  Triblecoch,  91  U.  S.  45,  Sanger  v.  Upton^ 
91  Id.  56,  and  Webster  v.  Upton,  91  Id.  G5,  are  all  cases  in 
which  the  corporation,  or  its  assignees,  asserted  the  liability 
of  the  defendant  as  a  stockholder;  and  no  cases  cited  in  the 
opinion  delivered  in  Griswold  v.  Seligman,  supra,  in  which  one 
was  held  liable  as  a  stockholder,  at  the  suit  of  a  creditor  of 
the  corporation,  who  was  not,  as  between  himself  and  the 
corporation,  held  to  be  a  stockholder. 

The  following  quotations  from  Lindley  on  Partnership  are 
cited  with  approval  in  that  opinion:  "Whenever  a  person  has 
been  treated  as  a  share-holder  by  the  company,  and  has  acted 
as  a  share-holder,  both  he  and  the  company  will  be  estopped 
from  denying  that  he  is  a  share-holder  ":  Lindley  on  Partner- 
ship, 129.  "  If  a  person  is  a  member  of  a  company,  as  between 
himself  and  the  company,  then,  whether  he  is  so  by  reason  of 
his  having  become  a  member  by  complying  with  all  requisite 
formalities,  or  by  reason  of  the  doctrine  of  estoppel,  he  ought, 
upon  principle,  to  be  deemed  a  member  to  all  intents  and 
purposes":.  Id.  12.  An  argument  based  upon  the  doctrine 
announced  by  Lindley,  in  order  to  have  any  force  or  applica- 
tion in  this  case,  must  assume  that,  as  between  the  corpora- 
tion and  the  Seligmans,  the  latter  were  stockholders,  having 
all  the  rights,  and  resting  under  all  the  obligations,  of  stock- 
holders in  the  company.  Will  the  law,  from  the  act  of  the 
Seligmans,  in  evidence,  imply  a  contract  radically  different 
from  that  contained  in  the  written  agreement  between  them 
and  the  corporation?  Will  it  hold  them  as  stockholders  in  a 
controversy  between  them  and  the  corporation,  because  they 
voted  the  stock,  which  they  held  as  collateral  security  for  pay- 
ment of  the  bonds  of  the  company  and  for  advances  of  money 
to  the  company,  whether  that  stock  was  legally  or  illegally 
voted?  If,  supposing  they  had  the  right  to  do  so,  they  voted 
the  stock,  shall  they,  for  that,  be  held  to  have  incurred  an  in- 
debtedness to  the  company  of  six  million  dollars,  when  they 
supposed  they  were  but  protecting  a  demand  they  had  against 
it  for  only  several  hundred  thousand  dollars? 

The  supreme  court  of  the  United  States,  in  Burgess  v.  Selig- 
man, supra,  held  that,  whether  the  Seligmans  had  the  right  to 
vote  the  stock  or  not,  the  act  of  voting  it  did  not  make  them 
absolute  stockholders,  either  as  between  themselves  and  the 


780         Union  Savings  Association  v.  Seliqman.     [Missouri, 

corporation,  or  creditors  of  the  corporation,  but  that  in  either 
case  they  had  the  right  to  show  that  they  held  the  stock  as 
collateral  security,  and  not  otherwise,  and  I  am  of  that  opin- 
ion. This  case  is  not  to  be  confounded  with  those  in  which 
persons,  once  stockholders,  were,  by  the  corporation,  released 
from  all  liability  as  such,  but  were  still  held  liable,  as  share- 
holders, to  creditors  of  the  corporation,  although  the  corpora- 
tion itself  might  not  have  been  able  to  hold  tbem  to  liability 
as  stockholders.  But  I  think  that  section  9,  article  11,  Wag- 
ner's Statutes,  page  301,  exempts  them  from  any  liability  as 
stockholders.     It  reads  as  follows: — 

"  Section  9.  No  person  holding  stock  in  any  such  company, 
or  executor,  administrator,  guardian,  or  trustee,  and  no  person 
holding  such  stock  as  collateral  security,  shall  be  personally 
subject  to  any  liability  as  stockholder  of  such  company,  but 
the  person  pledging  such  stock  shall  be  considered  as  holding 
the  same,  and  shall  be  liable  as  a  stockholder  accordingly; 
and  the  estates  and  funds  in  the  hands  of  the  executor,  ad- 
ministrator, guardian,  or  trustee  shall  be  liable  in  like  manner, 
and  to  the  same  extent,  as  the  testator,  or  intestate,  or  the 
ward,  or  person  interested  in  such  fund  would  have  been,  if 
he  had  been  living  and  competent  to  act,  and  held  the  same 
stock  in  his  own  name." 

If  the  corporation  had  the  right  to  issue  a  portion  of  its  au- 
thorized capital  stock,  undisposed  of,  to  be  held  as  collateral 
security,  then,  by  the  express  terms  of  the  statute,  the  Selig- 
mans  are  exempt  from  liability  as  stockholders.  That  the 
corporation  had  the  right  so  to  issue  the  stock,  the  supreme 
court  of  the  United  States  held,  in  Burgess  v.  Seligman,  supra, 
and  the  same  ruling  was  made  by  the  court  of  appeals  of 
Maryland,  in  the  case  of  Mathews  v.  Albert,  24  Md.  527.  But 
if  otherwise,  then  the  Seligmans  acquired  no  right  whatever  in 
the  stock,  either  to  hold  or  vote  it;  and  certainly,  in  the  face  of 
the  written  agreements  between  them  and  the  company,  they 
could  not  be  held  by  the  latter  as  absolute  stockholders,  and 
debtors  to  the  company  to  the  amount  of  six  million  dollars, 
when  the  sole  intent  of  the  transaction  was  that  they  should 
advance  money  to  complete  and  outfit  the  road,  and  hold  the 
stock  as  collateral  security  for  such  advancement.  To  hold 
them  liable  to  the  company  as  stockholders,  under  such  cir- 
cumstances, would  be  grossly  inequitable,  and  no  authority 
can  be  found  to  sanction  such  a  rule. 

Our  statute,  section  9,  supra,  is  a  copy  of  the  statute  of 


April,  1887. J    TTnion  Savings  Association  v.  Seligman.     781 

Maryland,  which  was  construed  by  the  court  of  appeals  of 
that  state,  in  the  case  above  cited,  which  bears  a  striking  re- 
semblance to  this.  One  Tieman  had  loaned  a  corporation  two 
thousand  dollars,  and  as  security,  a  certificate  of  stock  was 
issued  to  him,  which,  when  issued,  was  absolute  on  its  face, 
but  subsequently  an  indorsement  was  placed  upon  it  by  the 
company,  stating  that  it  had  been  issued  to  Tieman  as  collat- 
eral security.  It  was  contended  that  the  case  was  not  within 
the  statute,  and  that  Tieman  was  liable  to  creditors  as  a  stock- 
holder; but  the  court  of  appeals  gave  the  following  answer  to 
that  question,  Goldsborough,  J.,  delivering  the  opinion  of  the 
court:  "The  claim  of  W.  H.  Tieman  is  for  two  thousand  dol- 
lars, money  alleged  to  be  loaned  to  the  company  on  the  eighth 
day  of  January,  1859.  But  it  is  insisted  by  the  appellees  that 
Tieman,  instead  of  being  a  non-stockholder,  is,  according  to 
the  evidence,  a  stockholder,  and  as  much  liable  as  the  Alberts. 
AVc  do  not  concur  in  this  view  of  the  relation  of  Tieman  to  the 
company.  In  our  opinion,  his  claim  is  for  money  loaned,  and 
the  stock  transferred  to  him  was  held  by  him  as  collateral 
security  for  his  loan,  and  so  holding  it,  he  is  not  personally 
subject  to  any  liability  as  stockholder,  but  is  protected  by  the 
provisions  of  the  twelfth  section  of  the  acts  of  1852,  chapter 
338."  The  supreme  court  of  the  United  States,  in  Burgess  v. 
Seligman,  supra,  placed  the  same  construction  upon  the  stat- 
ute, and  the  same  view  of  a  similar  statute  was  taken  by  the 
commissioners  of  appeal,  in  the  state  of  New  York,  in  McMa- 
hon  V.  Macy,  51  N.  Y.  155. 

The  supreme  court  of  the  United  States  also  held,  in  Bur- 
gess V.  Seligman,  supra,  that  the  Seligmans  h^d  a  right  to  vote 
the  stock  held  by  them  as  collateral  security.  This  right  was 
necessary  to  their  protection,  and  it  seems  to  have  been  con- 
templated by  the  parties  that  it  should  be  voted.  It  was  a 
majority  of  the  authorized  capital  stock,  and  Jesse  and  Joseph 
Seligman  testified  that  the  stock  was  given  them  in  order  that 
they  might  control  the  management  of  the  company,  so  that 
its  earnings  should  be  honestly  secured  and  appropriated  to 
the  payment  of  the  bonds.  ^Vhether  they  had  the  right  to 
vote  the  stock  or  not,  voting  it  under  an  impression  that  they 
had  the  right  certainly  did  not  alter  their  relations  to  the  cor- 
poration as  established  by  the  written  agreement. 

It  is  with  reluctance  that  I  agree  to  overrule  any  case  de- 
cided by  this  court,  and  this  reluctance  is  the  greater  where  a 
line  of  decisions  is  to  be  overthrown;  but  the  opinions  delivered 


782         Union  Savings  Association  v.  Seliqman.    [Missonri, 

in  tbc  case  of  Griswold  v.  Scligman,  72  Mo.  110,  and  tliOBe  fol- 
lowing it,  never  had  my  entire  concurrence,  and  one  member 
of  the  court  dissented,  and  I  am  now  satisfied  that  I  should 
not  have  given  even  the  partial  concurrence  which  I  expressed. 
The  supreme  court  of  the  United  States,  every  member  of  that 
bench  concurring,  has,  since  Griswold  v.  Seligman,  supra^  was 
decided  by  this  court,  announced  doctrines  in  conflict  with 
our  rulings  in  that  case.  The  court  of  appeals  of  Maryland 
placed  a  different  construction  upon  their  statute,  of  which 
ours  is  a  copy,  from  that  which  we  announced  in  Griswold  v. 
Seligman,  supra;  and  the  commissioners  of  appeal  of  the  state 
of  New  York,  also,  in  the  construction  of  a  similar  statute  of 
that  state,  followed  the  decision  in  Maryland;  and  while  we 
are  under  no  obligations  to  yield  our  own  and  adopt  the  opin- 
ions either  of  the  supreme  court  of  the  United  States  or  of 
the  appellate  courts  of  sister  states,  it  is  our  duty  to  receive 
light  on  doubtful  questions,  from  whatever  source  it  may 
come.  It  does  not  become  us  to  shut  our  eyes  to  what  other 
respectable  courts  have  held,  and  blindly  follow  what  we  havo 
decided,  because  we  have  decided  it.  As  we  said  in  State 
V.  Brassfield,  67  Mo.  34:  "In  cases  appealed  from  this  court 
to  the  supreme  court  of  the  United  States  we  are  bound  by 
its  mandates,  but  in  other  cases  we  are  no  more  bound  by  its 
decisions  than  by  those  of  any  other  respectable  court." 

Nor  has  the  doctrine  of  stare  decisis  any  application  in  this 
case.  No  rule  of  property  was  settled  by  the  case  of  Griswold 
V.  Seligman,  supra.  No  one  can  possibly  have  given  credit  to 
the  bankrupt  corporation,  on  the  faith  of  the  ownership  of  this 
stock  by  the  Seligmans  since  that  judgment  was  rendered; 
and  there  is  no  principle  of  law  or  equity  to  prevent  us  from 
rectifying  the  error  we  committed  in  that  case,  and  announcing 
what  we  are  now  satisfied  are  correct  principles  of  law. 

The  judgment  is  reversed. 

Sherwood,  J.,  dissented. 

Hough,  C.  J.  I  am  still  of  opinion  that  section  9,  article 
11,  Wagner's  Statutes,  page  301,  is  not  applicable  to  this  case. 
That  section  provides  that  the  person  holding  stock  as  col- 
lateral security  shall  not  be  liable  as  a  stockholder;  "but  tho 
person  pledging  such  stock  shall  be  considered  as  holding  the 
same,  and  shall  be  liable  as  a  stockholder  accordingly."  This 
statute,  I  think,  clearly  applies  to  stock  which  has  been  regu- 
larly issued  by  the  company,  and  which  has  been  pledged  by 


April,  1887.]    Union  Savings  Association  v.  Seligman.     783 

the  holder  thereof;  for  I  cannot  imagine  that  the  legislature 
ever  contemplated  that  the  corporation  itself  should  be  held 
"liable  as  a  stockholder  "  of  its  unissued  stock.  Undoubt- 
edly, if  all  the  stockholders  of  a  corporation  consent,  the  un- 
issued stock  may  bo  sold  for  a  non-inal  consideration,  or  be 
given  away  to  any  one  they  may  select  as  the  object  of  their 
bounty,  and  the  person  receiving  such  stock  could  not  be 
made  liable  to  the  corporation  for  the  full  value  thereof,  but 
such  person  might  nevertheless  be  held  liable  by  creditors  of 
the  corporation  for  such  proportion  of  the  value  thereof  as 
remained  unpaid.  I  conceive  it  to  be  against  public  policy  to 
permit  a  corporation  to  put  its  unissued  stock,  to  an  amount 
BuflBcient  to  control  the  affairs  of  the  corporation,  in  the  hands 
of  a  person  who  is  in  no  event  to  incur  any  responsibility  as  a 
stockholder  to  creditors,  by  holding  and  voting  the  same,  and 
thus  managing  and  controlling  the  affairs  of  the  corporation. 


LiAEiLixr  OF  Holder  of  Stock  as  Collateral.  —  The  case  of  Burges$ 
V.  Seligman,  107  U.  S.  20,  arose  out  of  the  same  transactions  under  con- 
bideration  in  the  principal  case.  In  the  case  of  Orisunld  v.  Seligman,  72  Mo. 
110,  also  involving  the  same  questions,  the  supreme  court  of  Missouri  had 
held  that  tho  defendants  could  not  claim  immunity  from  the  creditors  of  the 
corporation,  on  the  ground  that  they  held  the  stock  as  collateral  security,  for 
the  reason  that  the  stock  was  issued  directly  to  them  by  the  corporation,  — 
stock  so  issued  standing,  in  the  opinion  of  the  court,  in  a  substantially  differ- 
ent position  from  stock  which  had  been  issued  to  a  stockholder,  and  by  him 
transferred  to  secure  a  loan.  Upon  this  question  the  supreme  court  of  the 
United  States  said:  "Tho  argument  that  the  exemption  from  liability  in 
cases  of  stock  held  as  collateral  security  applies  only  to  those  who  have  re- 
ceived it  from  third  persona  who  were  stockholders,  and  who  can  be  pro- 
ceeded against  as  such,  seems  to  us  unsound,  and  contrary  both  to  the  words 
and  the  reason  of  the  law.  It  takes  for  granted  that  stock  cannot  be  re- 
ceived as  collateral  security  from  the  corporation  itself,  and  still  belong  to 
the  corporation;  and  yet  we  know  that  sucli  transactions  are  very  common  in 
the  business  of  this  country.  The  words  of  the  statute  are  positive,  and  re- 
late to  all  holders  of  stock  for  collateral  security.  They  are  aa  follows:  'No 
person  holding  stock  in  any  such  company  as  executor,  administrator,  guar- 
dian, or  trustee,  and  no  person  holding  such  stock  as  collateral  security,  shall 
be  personally  subject  to  any  liability  as  stockholder  of  such  company.'  The 
reason  of  this  law  is  derived  from  the  gross  injustice  of  making  a  person 
liable  as  the  owner  of  stock  when  he  only  holds  it  in  trust  or  by  way  of 
security,  and  from  the  inexpediency  of  putting  a  clog  upon  this  species  of 
property,  which  will  have  the  effect  of  making  it  unavailable  to  the  owner, 
or  of  deterring  prudent  and  responsible  men  from  accepting  positions  of  trust 
when  any  such  property  is  concerned.  It  seems  to  us  that  not  only  the  law, 
but  the  reason  upon  which  it  is  founded,  applies  to  the  holders  of  stock  as  col- 
lateral security,  whether  received  from  an  individual  or  from  the  corporation 
itself.  It  is  argued,  however,  that  the  remaining  words  of  the  law  are  re- 
pugnant  to  this  view.     Tbece  words  are  as  follows:  '  But  the  person  pledging 


784         Union  Sayings  Association  v.  Seligman.     [Missouri. 

snch  stock  shall  be  considered  as  holding  the  same,  and  shall  be  liable  as  a 
Btockholder  accordingly;  and  the  estates  and  funds  in  the  hands  of  snch  ex- 
ecutor,  administrator,  guardian,  or  trustee  shall  be  liable,  in  like  manner  and 
to  the  same  extent  as  the  testator  or  intestate,  or  the  ward  or  person  interested 
in  such  fund,  would  have  been  if  he  had  been  living  and  competent  to  act,  and 
held  the  stock  in  his  own  name.*  The  argument  is,  that  these  words  imply 
that  there  must  always  be  some  person  or  estate  to  respond  for  the  stock,  or 
else  the  exemption  cannot  take  effect.  The  obvious  answer  to  this  is,  that 
this  clause  fixes  the  liability  upon  the  pledgor  as  a  stockholder,  where  there 
is  a  pledgor  who  can  be  made  liable  in  that  character.  When  the  corpora- 
tion pledges  its  own  stock  as  collateral  security,  though  it  cannot  be  pro- 
ceeded against  as  a  stockholder  eo  nomnine,  the  reason  is  l)ecause  it  is  pri- 
marily liable,  before  all  stockholders,  for  all  its  debts.  In  «nch  a  case  the 
claui^e  last  quoted  would  not  strictly  apply  to  it,  but  the  holder  of  its  stock 
as  collateral  security  would  be  both  within  the  letter  and  tho  spirit  of  the  first 
clause.  It  is  supposed  that  some  flagrant  injustice  would  ensue  if  there  was 
not  some  one  who  could  be  reached  as  a  stockholder  in  every  case  of  stock 
pledged  as  collateral  security;  hence  stock  pledged  by  the  corporation  itself 
must  be  regarded  as  belonging  to  the  pledgee,  though  no  other  pledgee  of 
stock  is  treated  in  this  way.  Where  is  the  justice  of  this?  Why  should  the 
stock  be  necessarily  considered  as  belonging  to  some  one  besides  the  corpora- 
tion itself?  Is  any  one  harmed  by  considering  the  corporation  as  its  true 
owner?  If  the  stock  had  not  been  issued  as  collateral  security,  it  would  not 
have  been  issued  at  all;  it  would  not  have  been  in  existence.  Would  the 
creditors  have  been  any  better  off  in  such  case?  They  are  better  off  by  the 
issue  of  the  stock  as  collateral,  because  the  general  assets  of  the  company 
have  received  the  benefits  of  the  moneys  obtained  by  means  of  the  pledge. 
The  more  closely  the  matter  is  examined,  the  more  unreasonable  it  seems 
to  deny  to  a  pledgee  of  the  corporation  the  same  exemption  which  is  ex- 
tended to  the  pledgee  of  third  persons.  We  think  that  the  one  equally 
with  the  other  is  protected  by  the  express  words  and  true  spirit  of  the  law." 
Natukb  and  Extent  of  Stockholder's  Liability:  See  note  to  Franklin 
Glass  Co.  V.  Alexander,  9  Am.  Dec.  96-104;  note  to  Freeland  v.  McCuUoughf 
43  Id.  694-703;  and  McCarthy  v.  Laviseke,  31  Am.  Rep.  83,  and  note. 


CASES 


COURT    OF   APPEALS 


ov 


NEW  YORK 


Piper  v.  Hoard. 

[107  New  Yoek,  67.  J 

Statdtb  or  LnuTATTONs  Runs  against  Weak-bcdtded  Pbrson,  whose 
mental  infirmity  does  not  amount  to  idiocy  nor  lunacy,  from  the  time  of 
the  discovery  of  a  cause  of  action  based  upon  fraud,  such  fraud  having 
been  explained  to  him  so  that  he  was  made  to  understand  it,  though  with 
some  difficulty. 

SlATUTB  or  LoiiTATioNS  Onck  Set  IN  MoTiON  continues  to  run,  notwith- 
standing undue  influence  exercised  by  the  defendant  over  plaintifi',  the 
latter  being  weak-minded,  but  not  an  idiot  nor  lunatic. 

fixATUTE  or  LiuiTATiONs  13  Pbopeblt  Pleaded,  when  to  a  complaint  seek- 
ing relief  on  the  ground  of  fraud  the  answer  pleads  that  the  cause  of 
action  did  not  accrue  within  six  years  before  the  commencement  of  the 
action. 

Plaintiff,  Caroline  C.  Piper,  as  sole  heir  of  her  father,  Fred- 
erick Piper,  deceased,  brought  this  action  in  February,  1881,  to 
•et  aside  a  deed  made  by  her  father  in  1859.  Judgment,  en- 
tered in  favor  of  defendant  at  a  special  term  of  the  supreme 
court,  was  affirmed  at  the  general  term,  whence  an  appeal  was 
prosecuted  to  this  court. 

A.  M.  Beardsley,  for  the  appellant. 

A.  IL  Prescott,  for  the  respondent. 

By  Court,  Finch,  J.  The  facts  of  this  case  are  only  impor- 
tant as  they  bear  u\K>n  the  inquiry,  when  the  cause  of  action 
accrued,  and  tbe  statute  of  limitations  began  to  run.  The 
plaintiff,  as  moIo  heir  of  her  fatlier,  seeks  to  set  aside  a  deed 
made  by  him  in  February,  1859,  to  tbe  defendant,  and  a  sub- 

▲m.  St.  Bsr..  Vol.  I.  -  00  786 


786  PiPEB  V.  Hoard.  [New  Yo^ 

Bequent  settlement  which  confirmed  it,  on  the  ground  that  both 
were  the  product  of  fraud  and  undue  influence.  A  jury  to 
whom  special  issues  were  submitted  decided  the  facts  in  favor 
of  the  plaintiff,  and  their  conclusion  was  adopted  by  the  court. 
We  are  to  assume,  therefore,  that  the  deed  and  the  settlement 
were  fraudulent,  and  might  have  been  avoided  by  Frederick 
Piper  in  his  lifetime  at  any  moment  after  they  came  into  ex- 
istence. But  the  action  is  conceded  to  have  been  of  a  charac- 
ter solely  cognizable  in  equity,  and  founded  upon  a  fraud,  and 
the  statute  did  not  begin  to  run  until  the  discovery  of  that 
fraud.  The  trial  judge  found  as  a  fact  that,  for  a  period  of 
sixteen  years  before  his  death,  Frederick  Piper  could  have 
maintained  an  action  for  the  same  substantial  relief  now 
sought;  and  it  is  involved  in  that  finding,  and  more  plainly 
disclosed  in  the  opinion,  that  during  all  that  time  he  had  a 
full  knowledge  of  the  facts  constituting  the  fraud.  While  he 
was  somewhat  weak-minded,  he  was  by  no  means  destitute  of 
mental  capacity  or  understanding,  and  was  able  to  know  and 
comprehend  the  facts  which  transpired.  Jle  knew  that  he 
made  the  deed  to  Hoard,  and  the  consideration  for  it.  He 
knew,  also,  for  he  was  expressly  told,  that  the  conveyance 
could  be  avoided  for  fraud;  and  after  the  whole  matter  had 
been  explained  to  him,  not  only  by  his  wife  but  by  the  counsel 
chosen  to  protect  and  enforce  his  rights,  he  gave  his  consent  to 
the  commencement  of  an  action  which  alleged  that  fraud,  and 
Bought  to  rectify  it.  At  that  date  he  knew  all  the  facts,  and 
their  wrongful  and  fraudulent  character.  The  only  influence 
then  operating  upon  him  was  the  perfectly  proper  influence  of 
his  wife  and  his  counsel.  Mr.  Throop  testifies  that  the  whole 
situation  was  explained  to  him;  that  he  was  made  to  under- 
stand it,  although  with  some  difficulty  and  delay;  and  that 
when  he  did  consent  he  answered  intelligently  and  rationally. 
This  witness  was  the  first  one  called  on  behalf  of  the  plaintiff, 
and  was  the  counsel  chosen  to  redress  the  existing  wrong.  The 
fraud  at  that  moment  was  complete.  It  had  been  discovered, 
and  was  fully  known  to  Piper  and  his  advisers, — so  fully  that 
it  served  to  found  an  action  in  his  behalf  as  complete  in  its 
allegations  of  fraud  and  undue  influence  as  the  one  before  us. 
The  statute  of  limitations  began  then  to  run,  and  of  course 
continued  to  run  unless  stopped  by  some  statutory  provision: 
Code  Civ.  Proc,  sec.  408.  It  may  be  true,  and  doubtless  is 
true,  that  Piper  did  not  realize  as  clearly  and  distinctly  as 
others  the  force  of  the  facts  brought  to  his  knowledge,  and  the 


Oct.  1887.]  Piper  v.  Hoard.  787 

extent  and  scope  of  the  wrong  which  had  been  done  him.  But 
he  was  neither  idiot  nor  lunatic;  he  had  memory,  sense,  and 
judgment;  a  mental  capacity  of  low  grade  and  a  lack  of  inde- 
pendence and  will,  but  yet  sufficient  ability  to  understand  and 
comprehend;  and  that  supplemented  by  the  aid  and  advice 
of  intelligent  and  competent  friends.  It  is  impossible  not  to 
Bee  that  at  this  point  of  time  a  discovery  of  the  fraud  had  oc- 
curred. I  do  not  understand  that  the  question  whether  such  a 
discovery  has  taken  place  depends  upon  the  mental  condition 
of  the  party  injured,  where  he  has  legal  capacity  to  act  and  to 
contract,  nor  upon  his  freedom  from  undue  influence  or  ability 
to  resist  it.  If  he  has  ascertained  the  facts  which  constitute  the 
fraud,  and  so  has  discovered  its  existence,  the  statute  begins 
to  run,  irrespective  of  the  degree  of  intelligence  possessed  by 
the  injured  party,  and  whether  he  has  enough  of  courage  and 
independence  to  resist  a  hostile  influence,  and  assert  his  rights 
or  not.  In  either  event  there  has  been  discovery  of  the  fraud; 
the  right  of  action  has  fully  accrued,  and  the  statute  begins 
to  run. 

Soon  after  the  action  of  Frederick  Piper  to  cancel  the  deed 
had  been  commenced,  the  defendant,  Hoard,  seems  to  have 
regained  his  influence  and  control  over  him.  The  defendant 
induced  him  to  discontinue  his  action,  making  a  new  ar- 
rangement, to  which  the  wife  was  a  party,  and  assuming  a 
new  liability  as  a  consideration  for  the  conveyance.  This 
settlement  the  jury  and  the  court  found  was  itself  fraudulent. 
It  indicates  a  new  exertion  of  undue  influence  to  nullify  and 
avert  the  grantor's  effort  for  redress.  That  finding  leaves  the 
original  fraud  unpurged,  and  the  right  of  action  it  gave  un- 
discharged, but  I  am  unable  to  see  how  it  could  stop  the  run- 
ning of  the  statute  of  limitations.  The  law  provides  for  no 
such  disability.  We  cannot  add  it  to  the  statute.  The  new 
wrong  might  possibly  give  a  new  right  of  action,  but  could 
not  suspend  the  existence  of  the  old  one.  The  cases  cited  in 
behalf  of  the  plaintiff"  do  not  reach  the  difficulty.  Most  of 
them  relate  merely  to  the  effect  of  laches  or  acquiescence  as 
excused  or  disarmed  by  the  continued  presence  of  undue  in- 
fluence, and  have  no  relation  to  the  peremptory  command  of 
a  statute:  Sharp  v.  Leach,  31  Beav.  491;  Gowland  v.  De  Farias 
17  Ves.  25;  Kerr  on  Fraud,  301.  In  one,  the  question  arose 
over  the  adverse  possession  of  a  slave  under  a  statute  of  the 
state;  and  the  actual  possession  was  held  not  to  be  adverse, 
because  of  a  continued  undue  influence. which  prevented  coor 


788  PiPEB  V.  Hoard.  [New  Yoik, 

Bciousness  of  aoy  adverse  character  attending  the  possession: 
Oldham  v.  Oldham,  5  Jones  Eq.  89.  Here  the  statute  began 
to  run.  There  was  a  time  when  Piper  discovered  the  fraud, 
when  the  facts  and  their  character  were  explained  to  him, 
when  he  was  for  the  moment  free  from  the  domination  of 
Hoard  and  acting  in  defiance  of  it,  and  when  he  consented  to 
initiate  an  action  to  set  aside  the  deed.  We  cannot  justly 
say  that  he  did  not  then  and  there,  not  only  discover,  but 
realize  to  some  extent,  the  fraud  practiced  upon  him.  That 
set  the  statute  running;  and  it  continued  to  run,  unless  we 
import  into  it  a  new  disability  not  among  its  terms:  Code  Civ. 
Proc,  sec.  396.  We  therefore  see  no  answer  to  the  defense  of 
the  statute. 

It  was  suflBciently  pleaded.  The  code  provides  that  the 
right  of  action  is  deemed  to  have  accrued  when  the  fraud  is 
discovered,  and  not  sooner:  Sec.  382;  and  the  answer  pleads 
that  it  did  not  accrue  within  six  years  before  the  commence- 
ment of  the  action.     That  was  enough. 

It  is  claimed,  in  addition,  that  the  complaint  contained  a 
cause  of  action  in  the  plaintiff's  own  right,  and  not  derived 
from  her  father,  and  which  she  asserted  in  due  season  after 
the  disability  of  infancy  was  ended.  That  cause  of  action  is 
said  to  exist  in  the  false  representations  made  to  her  mother 
by  Hoard  to  induce  the  marriage  contract,  and  which  he  could 
be  required  to  make  good  to  the  issue  of  the  marriage.  But 
the  complaint  does  not  rest  upon  any  such  right.  That  cause 
of  action  concedes  the  validity  of  the  deed  to  Hoard,  and 
seeks  to  impose  a  trust  upon  the  property  conveyed  by  it,  and 
is  utterly  inconsistent  with  the  allegations  of  the  complaint, 
which  deny  wholly  the  validity  of  the  conveyance  and  the 
legal  title  of  Hoard.  The  suggested  cause  of  action  was  very 
properly  made  the  subject  of  a  new  suit,  which  is  itself  before 
us  on  appeal,  and  should  not  be  further  considered  here. 

The  judgment  should  be  affirmed,  with  costs. 

Judgment  affirmed. 


Until  Fraud  13  Discovered,  Statute  of  LnrrrATiONS  does  not  Run: 
Ferris  v.  Henderson,  41  Am.  Dec.  580;  Wear  v.  Skinner,  24  Am.  Rep.  517; 
Hoyle  V.  Jo7ies,  89  Am.  Dec.  273;  Munson  v.  HaUovoeU,  84  Id.  582,  and  note; 
Boyd  V.  Blankman,  87  Id.  14G,  and  note  163;  Adams  v.  Guerard,  76  Id.  624; 
Smith  V.  Fly,  76  Id.  114,  note;  Manufacturers'  Nat.  Bank  v.  Perry,  144  Mass. 
313;  Vizus  v.  O'Bannon,  118  111.  334;  Bohm  v.  Bohm,  9  Col.  100.  Whether 
the  same  ia  true  in  a  court  of  law,  see  Snodgrass  v.  Branch  Bank,  60  Am. 
Dec.  511,  note.  Where  there  is  fraud  in  a  transaction,  the  statute  of  limita- 
tions begins  to  run  only  upon  the  discovery  of  such  fraud,  or  from  the  time 


Oct.  1887.]  Piper  v.  Hoard.  789 

'when  a  person  with  ordinary  care  and  diligence  could  have  discovered  it. 
Facta  sufficient  to  put  such  a  person  upon  inquiry  are  equivalent  to  actual 
knowledge  of  the  fraud:  Parker  v.  Kuhn,  59  Am.  Rep.  840;  Angell  on  Limita- 
tions, sec.  187;  Penobscot  R.  R.  Co.  v.  Mayo,  24  Am.  Rep.  45;  Parker  v.  Kxihn, 
21  Neb.  413.  In  actions  for  relief  in  equity  in  courts  of  the  United  States 
upon  the  ground  of  fraud,  the  statute  of  limitations  does  not  run  until  with  due 
diligence  the  fraud  might  have  been  discovered,  and  this  rule  is  not  affected  by 
section  382  of  the  code  of  New  York,  sis  amended  in  1877:  Kirby  v.  Lake  Shore 
etc.  E.  R.  Co.,  120  U.  S.  130.  Courts  of  equity  will  not  interpose  if  a  party 
slumbers  upon  his  rights  unreasonably  after  the  detection  of  fraud,  or  means 
ofiferedof  detection:  Angell  on  Limitations,  sec.  190,  and  cases  cited.  Action 
for  damages  for  injury  to  property  by  false  representations  is  barred  in  six 
years  in  New  York:  Miller  v.  Wood,  41  Hun,  600. 

Statute  of  Listitations,  when  It  has  Okcb  Commenced  to  Run,  Con- 
tinues TO  DO  80:  Stevenson's  Heirs  v.  McReary,  61  Am.  Dec.  102;  Smilie  v. 
Biffle,  44  Id.  156,  and  note  159;  Bensell  v.  Chancellor,  34  Id.  561.  It  continues 
to  run  regardless  of  any  subsequent  disability:  Kistler  v.  Herelli,  39  Am.  Rep. 
131,  and  note  134;  Nicks  v.  Martindale,  18  Am.  Dec.  647,  note  649;  Chapin  v. 
Freeland,  66  Am.  Rep.  701;  Moore  v.  Armstrong,  36  Am.  Dec.  68.  When 
it  commences  to  run  in  the  lifetime  of  decedent,  it  will  not  be  suspended  by 
his  death:  Miller  v.  Swls,  65  Id.  596;  contra  and  exceptions,  see  cases  cited  in 
note  to  same.  Absence  from  the  state  of  a  holder  of  a  tax  deed  will  not 
prevent  the  statute  from  running  in  his  favor:  Beebe  v.  Doster,  36  Kan.  666. 
Where  it  has  commenced  to  run  in  one  state  in  favor  of  a  possessor  of  per* 
sonal  property,  a  removal  by  him  to  another  state  with  a  longer  period  of  pre- 
scription will  not  revive  the  cause  of  action:  Brown  v.  Broton,  48  Am.  Dec. 
62.  The  running  of  the  statute  is  suspended  during  the  absence  of  the  debtor 
from  the  state:  Armjield  v.  Moore,  97  N.  C.  34.  Where  the  first  criminal 
action  against  a  defendant  is  dismissed  because  the  indictment  did  not  cor- 
respond to  the  requirements  of  the  statute,  and  a  second  indictment  is  found 
on  the  dismissal  of  the  first,  the  running  of  the  statute  of  limitations  is  sns- 
pended  during  the  time  which  elapsed  between  the  finding  of  the  two  indict- 
ments: Smith  v.  StaU,  79  Ala.  21. 


Piper  v.  Hoard. 

ri07  New  Yobs,  78.1 

That  Cask  is  Novkl,  and  not  clearly  within  the  limits  of  any  adjudged 
case,  does  not  of  itself  warrant  the  denial  of  relief  to  a  complainant  in 
equity. 

Fraud  is  not  Mitioatbd  by  showing  that  it  consisted  of  fraudulent  repre- 
sentations, made  to  induce  a  woman  to  marry  from  mercenary  motives. 

Law  of  Marriaob  as  administered  by  the  courts  is  founded  on  business 
principles,  in  which  the  utmost  good  faith  is  exacted,  and  the  least  fraud 
made  a  subject  of  judicial  cognizance. 

That  Woman  wa.s  too  Ready  to  Marbt  from  Mkrokmart  Motives 
will  not  debar  her,  nor  the  child  of  the  marriage,  from  relief  based  on 
fraudulent  representations  made  to  her  to  indaoe  her  to  contract  such 
marriage. 

Under  Marriaoi  Settuocxnts,  Isscb  tak«  their  intereatt  as  purchasers 
under  both  parents. 


790  Piper  v.  Hoard.  [New  York, 

Estoppel.  —  Person  representing  that  certain  property  belonged  to  one  then 
negotiating  a  marriage  is  estopped  from  denying  the  truth  of  such  rep- 
resentations, when  to  do  so  would  disappoint  expectations  raised  thereby. 

IssuB  OF  Mabbiage  Brougut  about  by  Fal8ehood  and  Fraud  of  defend- 
ant may  call  him  to  account  for  such  fraud,  and  bind  him  to  make 
good  the  thing  in  the  manner  in  which  he  represented  it,  so  that  it  shall 
be  as  he  represented  it  to  be. 

Onb  may  be  Constituted  Trustee,  ex  Malificio,  in  Favor  of  Person 
NOT  IN  Esse,  by  fraudulent  representations,  if  the  latter  merely  seeks  to 
obtain  property  which  the  former  holds  by  virtue  of  his  fraud,  and 
which  the  latter  would  be  entitled  to  hold  if  the  representations  had 
been  true. 

Bill  in  equity  by  Caroline  C.  Piper,  daughter  of  Frederick 
and  Catharine  Piper,  praying  to  be  declared  the  owner  of  a 
certain  farm  in  the  possession  of  the  defendant.  The  defend- 
ant having  demurred  to  the  complaint,  his  demurrer  was 
overruled. 

C.  D.  Adams,  for  the  appellant. 

A.  M.  Beardsly,  for  the  respondent. 

By  Court,  Peckham,  J.  This  case  comes  here  upon  a 
demurrer  to  the  plaintiff's  complaint,  as  not  stating  facts 
sufficient  to  constitute  a  cause  of  action.  The  special  term 
overruled  the  demurrer,  and  granted  defendant  leave  to  an- 
swer upon  payment  of  costs.  This  privilege  the  defendant 
-refused  to  avail  himself  of,  and  final  judgment  was  duly 
^entered  against  him.  He  appealed  therefrom  to  the  general 
term,  where  the  judgment  was  affirmed,  with  costs,  and  leave 
was  again  granted  him  to  answer  on  payment  of  costs,  and 
again  the  privilege  was  refused,  when  final  judgment  of 
affirmance  being  entered,  the  defendant  appealed  to  this 
court. 

The  complaint  develops  a  curious  state  of  facts.  Its  ma- 
terial averments  are  as  follows:  The  plaintiff  resides  in  the 
city  of  Utica,  and  the  defendant  in  Herkimer  County.  In 
1842  one  Andrew  Piper  died,  a  resident  of  that  county,  leav- 
ing a  will  which  was  duly  proved,  and  by  which  he  left  all 
his  propert)"^,  including  the  farm  in  question,  to  his  two  sons, 
James  and  Frederick,  and  subject  to  the  limitation  in  the  case 
of  Frederick,  that  if  he  should  die  without  issue  the  portion  of 
the  estate  devised  to  him  should  belong,  and  was  thereby  de- 
vised, to  the  brother  James  and  his  heirs.  James  and  Fred- 
crick  took  possession  of  the  farm  (which  consisted  of  140  acres 
in  Herkimer  County),  and  continued  to  own  it  together  until 


Oct.  1887.]  Piper  v.  Hoard.  791 

March  26,  1859,  when  Frederick  conveyed  his  interest  therein 
to  defendant,  who  had,  prior  to  1859,  married  a  niece  of  Fred- 
erick. In  1875  Frederick  died.  After  defendant  had  procured 
a  deed  of  his  interest  from  Frederick  in  the  farm  above  men- 
tioned, the  defendant  went  to  Utica  to  see  one  Catharine  Hogel 
for  the  purpose  of  bringing  about  a  marriage  between  her  and 
Frederick,  and  thus  procuring  an  heir  to  him,  and  defendant 
persuaded  Catharine  to  go  and  see  Frederick,  defendant  pay- 
ing the  expenses  of  the  trip.  In  order  to  persuade  Catharine 
to  marry  Frederick,  and  in  the  course  of  his  efforts  in  that 
direction,  and  referring  to  the  interest  of  Frederick  in  the 
farm,  the  defendant  falsely  and  fraudulently  represented  to 
her  that  Frederick  had  a  fine  property  so  left  to  him  that  if  he 
married  and  had  an  heir  the  land  would  go  to  the  heir;  that, 
induced  by  such  statements  and  representations  made  to  her 
by  the  defendant,  Catharine  did  marry  Frederick  on  the 
eleventh  day  of  April,  1859,  the  result  of  which  marriage  was 
the  birth  of  the  plaintiff  within  a  year  thereafter,  and  she  is 
the  only  child  of  such  marriage. 

In  September,  1859,  the  farm  was  duly  partitioned  between 
James  Piper  and  the  defendant,  as  the  grantee  of  Frederick, 
by  an  interchange  of  deeds  conveying  the  respective  parts, 
and  the  defendant,  since  such  conveyance,  has  occupied  the 
part  set  off  to  him  as  the  owner  thereof,  and  still  occupies  and 
claims  to  own  it.  The  relief  prayed  for  was,  that  plaintiff  be 
declared  the  owner  of  the  portion  of  the  farm  set  off  by  parti- 
tion to  the  defendant,  and  that  plaintiff  be  placed  in  posses- 
sion of  the  same.  The  judgments  appealed  from  grant  such 
relief,  and  defendant  asks  for  their  reversal  while  admitting 
the  facts  above  stated.  There  was  no  opinion  written  by  the 
learned  judges  at  tho  special  or  general  term,  and  we  have  not 
the  benefit  of  their  views  upon  this  question. 

The  defendant,  while  confessing  that  he  procurred  the  fee 
of  the  farm  (through  this  marriage),  owned  by  the  plaintiff's 
father,  by  means  of  his  own  fraudulent  representations,  yet 
claims  that  the  plaintiff  has  no  right  of  &c  Jon  against  him  on 
that  account,  because  there  is  a  lack  of  privity  between  him 
and  plaintiff,  and  that  plaintiff  was  not  induced  to  any  action 
by  reason  of  his  fraud,  and  sustained  no  legal  damage  there- 
from, and  cannot  therefore  recover  any  from  him,  but  must 
sit  by  and  permit  the  land  once  owned  by  her  father  to  be  en- 
joyed by  defendant,  although  procured  by  him  by  means  of 
this  fraud. 


792  PiPEB  V.  Hoard.  [New  York, 

If  to  assume  jurisdiction  and  grant  relief  in  such  a  case 
would  be  to  run  counter  to  well-settled  rules  of  equity,  that 
fact  would  be  a  suflHcient  answer  to  the  plaintiff's  prayer  for 
judgment  herein.  But  if  the  most  that  can  be  said  is,  that  the 
case  is  novel,  and  is  not  brought  plainly  within  the  limits  of 
some  adjudged  case,  we  think  such  fact  not  enough  to  call  for 
a  reversal  of  this  judgment.  The  spectacle  of  an  individual 
enjoying  property  acquired  by  means  of  an  admitted  fraud  is 
not  one  which  appeals  with  any  great  force  to  the  sympathies 
of  a  court  in  a  civilized  land  in  behalf  of  the  perpetrator  of  the 
fraud.  Such  fraud  is  not  in  the  least  mitigated  in  its  char- 
acter by  the  statement  that  it  consisted  of  fraudulent  repre- 
sentations made  to  a  woman  to  induce  her  to  consent  to  a 
marriage  in  which  the  mercenary  motive  was  the  strong  if  not 
the  only  one.  The  fact  that  she  was  ready  and  desirous  of 
bettering  her  condition,  even  though  it  was  by  a  mercenary 
marriage,  does  not  alter  the  other  fact  that  the  defendant  en- 
joys property  which  he  has  acquired  by  the  successful  perpe- 
tration of  a  fraud,  and  which,  if  the  fraudulent  representations 
by  which  he  acquired  it  had  been  true,  the  plaintiff  herein 
would  be  herself  entitled  to  enjoy  as  owner. 

Marriage  has  its  sentimental  and  business  sides.  Courts 
have  very  little  to  do  with  the  former.  The  whole  law  of  mar- 
riage, as  administered  by  courts  (so  far  as  property  interests 
are  concerned),  is  founded  upon  business  principles,  in  which 
the  utmost  good  faith  is  required  from  all  parties,  and  the  least 
fraud  in  regard  thereto  is  the  subject  of  judicial  cognizance. 
To  say  of  plaintiff's  mother,  therefore,  that  she  was  too  ready 
to  marry  a  man  because  of  the  money  he  had,  or  would  neces- 
sarily leave  to  a  child  of  the  marriage,  or  that  she  was  an 
adventuress,  induced  to  marry  solely  by  fraudulent  represen- 
tations as  to  the  pecuniary  condition  of  her  husband,  does  not, 
as  I  have  said,  furnish  the  least  reason  for  refusing  relief  to 
plaintiff  if  she  be  otherwise  entitled  to  it.  If  her  mother  had 
not  been  induced  to  marry  by  any  such  pecuniary  considera- 
tions, clearly  no  caase  of  action  would  exist.  It  is  because 
such  considerations  were  the  moving  ones,  and  were  induced 
by  the  fraud  of  defendant,  that  the  plaintiff  bases  her  right  of 
action.  There  are  some  anomalies  in  the  law  relative  to  con- 
tracts or  negotiations  having  marriage  for  their  consideration, 
and  such  contracts  are  based  upon  considerations  which  ob- 
tain in  no  other  contract.  The  family  relations  and  their 
regulation  are  so  much  a  matter  of  public  policy  that  the  law 


Oct.  1887.]  Piper  v.  Hoard.  793 

in  relation  to  them  is  based  on  principles  not  applicable 
in  other  cases;  and  all  business  negotiations  having  marriage 
for  their  end  are  regarded  in  much  the  same  light  by  our 
courts.  Thus  a  particeps  criminis  in  the  fraud  has  been  per- 
mitted to  recover  in  his  own  name  against  one  who  was  no 
more  guilty  than  he,  when  the  marriage  had  taken  place  by 
reason  of  such  fraud. 

In  Neville  v.  Wilkinson,  1  Brown  Ch.  543,  decided  in  1782, 
the  plaintifif  was  the  individual  who  desired  to  marry  his  co- 
plaintiff's  daughter;  and  he  and  the  defendant,  who  was  an 
attorney  to  whom  he  owed  a  large  amount  of  money,  agreed 
that  defendant  should  represent  to  the  father  that  the  debt 
was  much  less  than  in  truth  it  was.  He  did  so;  and  after 
marriage  he  brought  an  action  on  a  bond  which  would  have 
made  the  debt  in  excess  of  the  amount  represented,  and  the 
plaintiff,  the  particeps  criminis,  was  permitted  to  succeed  in  an 
action  brought  by  him  and  his  father-in-law  to  compel  the 
surrender  of  the  bond.  The  case  is  not  cited  as  analogous  to 
the  one  under  discussion,  but  as  proof  of  the  statement  that 
there  are  anomalies  in  this  branch  of  the  law.  The  reason 
has  been  already  stated. 

In  Roberts  v.  Roberts,  3  P.  Wms.  66,  decided  in  1730,  A  had 
treated  for  the  marriage  of  his  son,  and  in  the  settlement  on 
the  son,  a  power  was  reserved  to  the  father  to  jointure  any 
wife  whom  he  should  marry  in  two  hundred  pounds  per  an- 
num, in  which  case  he  was  to  pay  the  son  one  thousand 
pounds.  The  father  subsequently  desired  to  marry  a  second 
time,  and  the  son  agreed  with  the  second  wife's  relations  to 
release  the  one  thousand  pounds,  and  did  release  it,  but  took 
a  private  bond  back  from  the  father  for  its  payment.  It  was 
held  that  equity  would  not  set  aside  the  private  bond,  because 
it  would  be  injurious  to  the  son's  wife,  whose  marriage  had 
taken  place  prior  to  the  second  one  of  the  father;  and  being 
prior  in  point  of  time,  its  equity  must  prevail.  The  master  of 
the  rolls  said  that  the  same  arguments,  advanced  to  show  that 
the  bond  should  be  discharged  as  an  injustice  to  the  second 
wife,  showed  it  should  be  paid,  or  equal  injustice  would  occur 
to  the  son's  wife,  and  the  maxim.  Qui  prior  est  in  tempore^  etc., 
should  prevail.  He  also  said  that  equity  abhors  all  under- 
banded  agreements  in  cases  of  marriage;  "and  perhaps  this 
may  be  the  only  instance  in  equity  where  a  person,  though 
particeps  criminis,  shall  yet  be  allowed  to  avoid  his  own  acts." 
Many  other  cases  of  a  similar  nature  might  be  cited. 


794  Piper  v.  Hoard.  [New  York, 

Although  these  are  instances  of  fraud  arising  in  relation  to 
marriage  settlements,  it  is  not  perceived  why  courts  may  not 
go  a  step  further  in  the  same  direction,  and  permit  a  recovery 
on  the  part  of  a  person  situated  like  the  plaintiff.  The  anomaly 
would  be  no  greater  in  this  case  than  in  the  others,  and  a  man 
holding  property  through  fraud  would  be  compelled  to  give  it 
up  to  the  person  who  would  be  entitled  to  it  if  he  had  spoken 
the  truth. 

Under  marriage  settlements,  it  is  held  the  issue  take  their 
interests  therein  as  purchasers  under  both  parents,  and  hence 
may  compel  the  payment  into  the  fund  by  the  promisors  on 
the  part  of  the  wife,  although  those  on  the  part  of  the  husband 
had  failed  to  pay  in  what  they  promised,  because  non-per- 
formance on  one  part  shall  be  no  impedient  to  the  children 
receiving  the  full  benefit  of  the  settlement:  See  Harvey  v. 
Ashley,  3  Atk.  607,  611.  The  action  is  sustained  on  th^  ground 
that  the  settlement  was  something  in  which  the  children  were 
interested,  and  were  privy  to  the  party  promising.  Is  there 
not  sufiicient  privity  in  such  a  case  as  this  between  the  de- 
fendant and  the  issue  of  the  marriage  induced  by  his  fraud, 
where  the  fraud  consists  of  false  and  fraudulent  representations 
made  by  him  to  the  mother,  which,  if  true,  would  entitle  the 
issue  to  the  ownership  of  the  very  property  which  he  holds  by 
virtue  of  such  fraud?  We  think  these  facts  create  sufficient 
privity  between  the  parties  to  sustain  such  an  action  as  this. 
It  is  true,  the  plaintiff  was  not  born  when  the  fraudulent  rep- 
resentations were  made.  Still  they  were  made  by  defendant 
to  plaintiff's  mother  for  the  purpose  of  inducing  a  marriage 
between  the  parents,  and  if  they  had  been  true,  the  plaintiff 
would  have  been  the  owner  of  this  particular  property.  In 
this  way  she  is  the  very  person  injured  by  the  fraud,  and 
although  not  individually  in  the  mind  of  defendant  when  he 
perpetrated  that  fraud,  yet,  as  filling  the  position  of  heir  to 
her  father,  she  belongs  to  the  class  which  defendant  had  in 
contemplation  when  he  represented  to  the  mother  that  the 
heir  of  Frederick  would  have  the  farm.  In  this  way  it  may 
be  claimed  that  defendant  had  in  view  the  plaintiff,  and  the 
rights  he  alleged  she  would  have.  Why  should  not  the  plain- 
tiff be  permitted  to  hold  the  defendant  to  his  representations? 
The  English  courts  have  held  that  a  person  who,  by  acts  or 
speech,  represents  property  as  belonging  to  the  proposed  hus- 
band, when  the  possession  thereof  forms  an  inducement  to  the 
marriage,  shall  be  bound  to  make  good  the  thing  in  the  man- 


Oct.  1887.]  Piper  v.  Hoard.  795 

ner  represented.     Such  is  the  case  of  Monlefiori  v.  Montefiori, 
1  W.  Black.  363,  Easter  term,  1762,  Mansfield,  C.  J. 

The  facts  of  the  case  were  these:  Montifiori  being  engaged 
in  a  marriage  treaty,  his  brother  Moses,  to  assist  him  in  his 
designs  and  represent  him  as  a  man  of  fortune,  gave  him  a 
note  for  a  large  amount  of  money  as  the  balance  of  accounts 
between  him  and  his  brother  Joseph,  which  balance  he  ac- 
knowledged to  have  in  his  hands,  though  in  truth  none  ex- 
isted. This  note  was  shown  by  Joseph  to  the  parents  of  the 
intended  wife,  and  was  an  inducement  to  the  marriage.  After 
the  marriage  Moses  desired  to  reclaim  the  note  so  given  with- 
out consideration,  and  the  matter  was  referred  to  arbitration, 
and  the  arbitrators  awarded  the  note  to  be  given  up,  which 
Joseph  refused  to  do,  and  the  case  then  came  up  on  motion 
for  an  attachment  against  Joseph  for  non-performance  of  the 
award,  and  Joseph  made  a  cross-motion  to  set  aside  the  award. 
Chief  Justice  Mansfield  held  that  where  there  were  proposals 
of  marriage,  and  third  persons  represented  anything  in  a  light 
difierent  from  the  truth,  even  though  by  collusion  with  the 
husband,  they  shall  be  bound  to  make  good  the  thing  in  the 
manner  in  which  they  represented  it.  It  shall  be  as  repre- 
sented to  be,  and  the  husband  alone  shall  be  entitled  to  relief 
as  well  as  when  the  fortune  has  been  specifically  settled  on 
the  wife. 

Atherly  in  his  work  on  marriage  settlements  (27  Law 
Lib.,  c.  34,  marginal  paging  484),  after  citing  the  above 
case,  says  that  the  principle  upon  which  the  court  proceeds  in 
such  cases,  when  the  thing  is  not  actually  made  the  subject  of 
the  settlement,  must  be  this,  as  he  conceives,  that  as  the  wife 
must  be  presumed  to  agree  to  the  marriage  as  well  in  expecta- 
tion of  the  present  support  which  she  and  her  children  will 
receive  from  her  husband  as  of  the  provision  which  he  may 
have  made  for  them  after  his  death,  that  a  person  who  has 
been  at  all  concerned  in  raising  such  expectation  shall  not  be 
suflered  in  any  wise  to  disappoint  it. 

Here  in  the  case  at  bar  it  is  necessary  to  take  but  one  further 
step  in  order  to  maintain  the  action.  It  is  only  necessary  to 
hold  that  the  issue  of  the  marriage,  which  was  brought  about 
by  the  falsehood  and  fraud  of  the  defendant,  shall  be  able  to 
call  him  to  account  for  such  fraud,  and  bind  him  to  make  good 
the  thing  in  the  manner  in  which  he  represented  it,  so  that  it 
shall  be  as  he  represented  it  to  be.  We  see  no  reason  why 
such  step  should  not  be  taken.     There  is  certainly  none  in  the 


796  Piper  v.  Hoard.  [New  York^ 

position  of  the  defendant,  who  stands  before  the  court  the 
possessor  of  property  by  reason  of  his  fraud,  which  property, 
if  it  were  as  it  was  represented  by  defendant,  would  belong  to 
the  plaintiff  herein.  She  can  claim  to  be  in  privity  with  de- 
fendant, although  he  made  the  representations  to  her  mother, 
because  she  is  the  child  of  the  marriage  brought  about  by  the 
fraud  of  the  defendant  practiced  upon  the  mother,  and  because 
she  would  be  the  owner  of  this  property  if  the  facts  were  as 
they  were  represented  by  the  defendant  to  the  mother. 

It  is  true,  her  own  action  was  in  no  wise  influenced  by  these 
representations,  for  she  was  not  then  born.  But  where,  in  the 
peculiar  and  anomalous  rules  obtaining  in  that  branch  of 
the  law  regarding  marriage,  marriage  settlements,  and  frauds 
in  relation  thereto,  a  marriage  is  induced  under  circum- 
stances such  as  exist  in  this  case,  we  think  there  is  no  trouble 
in  holding  the  defendant  bound  by  his  representations,  and 
that,  in  the  character  of  a  trustee  ex  maleficio,  he  shall  be  held 
to  make  good  the  thing  to  the  person  who  would  have  the 
property  if  the  fact  were  as  he  represented  it,  assuming  such 
person  to  be  the  fruit  of  the  marriage  brought  about  by  those 
very  representations. 

The  leading  principle  of  this  remedial  justice  is,  by  way 
of  equitable  construction,  to  convert  the  fraudulent  holder  of 
property  into  a  trustee,  and  to  preserve  the  property  itself  as 
a  fund  for  the  purpose  of  recompense:  Perry  on  Trusts,  sec. 
170. 

There  is  no  legal  objection  towards  constituting  such  a 
trustee  in  favor  of  one  who  was  not  in  esse  when  the  fraud  was 
perpetrated,  so  long  as  it  can  be  seen  that  such  person  seeks 
to  take  the  property  which  the  defendant  holds  by  virtue  of 
his  fraud,  and  which  such  person  would  be  entitled  to  hold  if 
the  representations  the  defendant  made  in  regard  to  it  were 
true.  Equity  will  fasten  upon  a  legatee  or  devisee  the  char- 
acter of  a  trustee,  ex  maleficio,  where  he  procured  the  legacy  or 
devise  by  fraudulently  promising  the  testator  to  apply  it  for 
the  benefit  of  others:  See  cases  cited  in  Matter  of  Will  of 
O'Hara,  95  N.  Y.  403,  412,  413;  47  Am.  Rep.  53.  The  prin- 
ciple would  be  just  as  applicable  if  the  fraudulent  legatee  had 
made  the  promise  by  which  the  legacy  was  procured  for  the 
benefit  of  some  one  thereafter  to  be  born.  The  refusal  to  per- 
form after  the  party  comes  into  existence  would  be  just  as 
much  a  fraud  as  if  refusal  were  in  regard  to  one  existing  when 
the  promise  was  made. 


Oct.  1887.]  Piper  v.  Hoard.  797 

In  the  case  last  cited,  regarding  the  will  of  O'Hara,  supra, 
the  legatees  were  converted  into  trustees  ex  malejicio  in  favor 
of  the  heirs  at  law  and  next  of  kin  of  the  testatrix,  not  one  of 
whom,  perhaps,  was  living  at  the  time  the  will  was  executed 
and  the  promise  made.  There  can  be  no  objection,  therefore, 
to  holding  this  defendant  as  such  trustee,  based  upon  the  fact 
that  when  he  made  the  false  representations  the  plaintiff  was 
not  living.  They  were  made  in  her  favor,  and  they  can  inure 
to  her  benefit. 

By  a  decision  of  this  case  in  this  manner,  we  think  at  least 
the  cause  of  common  honesty  and  decent  morals  is  upheld, 
while  at  the  same  time  no  rule  of  law  or  equity  is  violated. 
The  facts,  as  we  have  said,  are  quite  novel  in  their  character, 
and  the  result  is,  that  a  man  who  has  procured  property  by 
fraud  is  prevented  by  a  court  of  justice  from  further  enjoying 
it,  and  compelled  to  surrender  it  to  one  who  is  the  daughter  of 
the  person  from  whom  he  procured  it,  and  who  would  bo  en- 
titled to  it  if  the  representations  which  he  made,  and  by  which 
he  now  enjoys  it,  were  true.  Such  a  result  cannot  be  other 
than  satisfactory. 

The  defendant  asks,  if  his  demurrer  be  overruled  in  this 
court,  that  he  be  permitted  to  withdraw  it,  and  answer,  on  pay- 
ment of  costs.  He  has  twice  refused  this  favor  in  the  supreme 
court.  We  suppose  that  we  have  the  power  to  grant  it  now 
under  section  497  of  the  code.  Formerly,  in  such  a  case  as 
this,  it  was  decided  that  this  court  did  not  have  the  power  to 
grant  such  leave:  Whiting  v.  Mayor  etc.  of  New  York,  37  N.  Y. 
600. 

Under  the  circumstances,  we  do  not  think  it  would  be  well 
for  us  to  grant  the  leave  desired.  Changes  may  have  taken 
place  since  the  action  was  commenced  which  might  have 
weight  in  deciding  the  merits  of  the  application,  such  as  the 
loss  of  testimony  on  the  part  of  the  plaintiff,  or  other  changes 
of  that  nature.  Justice  will  be  better  attained  by  remitting 
that  question  to  the  supreme  court,  where  both  sides  may  be 
heard  upon  an  application,  and  all  the  questions  have  appro- 
priate consideration. 

The  judgment  should,  therefore,  be  affirmed,  with  costs, 
with  leave  to  defendant  to  apply  to  the  supreme  court  for  leave 
to  withdraw  the  demurrer  and  interpose  an  answer. 

RuoER,  C.  J.,  and  Andrews,  J.,  dissented. 

Judgment  accordingly. 


798  Clark  v.  Mosher.  [New  York, 

Marriaoe  Settlement.  — Equity  will  enforce  only  in  favor  of  a  husband 
or  wife,  or  their  issue,  or  those  claiming  under  them:  Merrill  v.  Scotl,  50  Am. 
Dec.  3G7.  Enforcement  of  may  be  compelled  by  any  person  within  the 
bcopc  of  the  consideration  of  the  marriage,  or  by  any  one  deriving  title 
through  such  person,  but  not  by  a  mere  volunteer,  even  although  such  volun- 
teer stands  in  the  position  of  a  wife  or  child;  but  when  action  is  brought  by 
a  person  entitled  to  bring  the  same,  the  settlement  will  be  given  effect  in 
favor  of  a  volunteer,  as  well  as  in  favor  of  the  party  bringing  the  action :  Id. 
Right  to  enforce  marriage  settlement  after  wife's  death  survives  to  her  per- 
sonal representatives,  and  not  to  her  legatees:  Mitcliel  v.  MUchel,  41  Id. 
237.  Marriage  settlement  cannot  be  reformed  by  persons  who  are  neither 
the  issue  of  the  marriage  nor  the  heirs  of  the  contracting  parties,  although 
such  persons  are  included  within  the  provisions  of  such  settlement:  Cook  v. 
Walker,  G8  Id.  461. 

Estoppel  by  Representations  Falselt  Made:  Cowles  v.  Bacon,  56  Am. 
Dec.  371;  Pierce  v.  Andrem,  52  Id.  748;  Partridge  v.  Stacker,  84  Id.  664; 
Russell  V.  Maloney,  94  Id.  358. 

Owner's  Estoppel  Created  bt  Standing  bt  and  Encouraging  Another 
TO  Buy  Land:  Guffey  v.  O'Reilly,  57  Am.  Rep.  424,  and  note:  Tongue's  Lessee 
V.  Nutwell,  79  Am.  Dec.  649;  Workman  v.  Outline,  72  Id.  654;  Saunderson  v. 
Ballance,  67  Id.  221. 

Trustee  ex  Maleficio.  —  A  person  purchasing  property  at  an  execution 
Bale  for  less  than  its  value,  by  falsely  representing  that  he  is  acting  for  and  in 
the  interests  of  his  principal,  will  be  held  as  a  trustee  for  such  principal: 
Cfrumley  v.  Webb,  100  Am.  Dec.  304.  One  who  procures  property  of  another 
by  artifice  or  fraud  ia  trustee  ex  Tnalejicio:  Bugle  v.  Wentz,  93  Id.  722;  Ryan 
V.  Dox,  90  Id.  696,  and  extended  note  708.  Where  vendor  sells  land  repre- 
senting that  an  entire  tract  can  be  acquired  under  a  warrant,  when  in  fact 
only  part  can  legally  pass,  and  subsequently  purchases  the  residue  of  the 
tract  for  himself,  he  will  be  treated  in  equity  as  a  trustee  ex  malejicio:  Tyson 
V.  Passmore,  44  Id.  181. 


Clark  v.  Mosher. 

[107  Nbw  York,  118.] 
Interpleader  —  Jury  Trial.  —  Where,  under  the  code,  the  defendant  ob- 
tains  an  order  substituting  a  third  party  as  defendant,  and  pays  the  moneys 
claimed  into  court,  in  order  that  the  substituted  defendant  and  the 
plaintiff  may  litigate  and  determine  their  respective  claims  to  such 
moneys,  the  action  thereupon  becomes  an  equitable  suit,  in  which  neither 
party  is  entitled  to  a  jury  trial,  and  the  verdict  of  a  jury,  if  one  ia 
called,  may  be  disregarded  by  the  court. 

Action  on  policy  of  life  insurance.  The  original  defendant, 
the  Phoenix  Mutual  Life  Insurance  Company,  pursuant  to 
section  820,  Code  of  Civil  Procedure,  made  an  affidavit,  stat- 
ing that  Mosher  claimed  to  own  the  policy,  and  moved  to  be 
discharged  on  paying  into  court  the  sum  sued  for.  The  mo- 
tion was  granted,  and  Mosher  was  substituted  as  defendant. 
At  the  trial,  although  defendant  claimed  that  it  was  an  equity 


Oct.  1887.]  Clark  v.  Mosher.  799 

case,  a  jury  was  called,  and  one  issue  of  fact  submitted  to 
them,  which  they  found  for  plaintiff.  The  court,  however, 
declining  to  be  bound  by  the  verdict,  found  the  fact  the  other 
way,  and  gave  judgment  for  defendant. 

N.  C.  Moak,  for  the  appellant. 

E.  Countryman,  for  the  respondent. 

By  Court,  Rapallo,  J.  If  the  counsel  for  the  defendant 
was  right  in  the  position  which  he  took  at  the  circuit,  that 
this  was  an  equity  case  triable  by  the  court,  the  practice 
adopted  by  the  trial  judge  in  impaneling  a  jury,  and  submit- 
ting to  it  a  single  question  of  fact,  to  be  answered  in  the 
affirmative  or  negative,  was  correct.  The  judge  was  also 
right  in  holding  that  he  had  the  power  to  disregard  the  find- 
ing of  the  jury  on  the  question  thus  submitted,  and  to  find 
the  fact  the  contrary  way;  and  the  judgment  for  the  defend- 
ant entered  pursuant  to  his  findings  and  conclusions  was 
regular:  Carroll  v.  Deimel,  95  N.  Y.  255. 

The  court  at  general  term  held,  on  the  motion  to  set  asiae 
that  judgment,  that  the  action  was  one  at  law  for  the  recovery 
of  money  only,  in  which  the  plaintiff  was  entitled  to  a  trial  by 
jury;  that  the  judge  consequently  had  no  power  to  disregard 
the  verdict  and  substitute  his  own  findings;  and  that  the  judg- 
ment entered  thereon  was  irregular. 

We  are  of  opinion  that  the  trial  judge  was  right  in  holding, 
as  claimed  by  the  defendant,  that  the  action  was  of  an  equi- 
table nature,  and  triable  by  the  court.  The  plaintiff  had  no 
right  of  action  at  law  against  the  defendant,  and  did  not  seek 
to  recover  any  money  from  him.  The  money  in  controversy 
was  in  court,  having  been  paid  into  court  by  a  third  party, 
the  Phoenix  Mutual  Life  Insurance  Company,  under  an  order 
made  on  the  application  of  that  company  pursuant  to  section 
820  of  the  code.  The  plaintiff  had  brought  an  action  at  law 
against  the  company  upon  a  policy  of  insurance,  and  the  com- 
pany, admitting  its  liabilities  on  the  policy,  set  up  that  the 
defendant's  intestate  also  claimed  the  amount  of  the  policy, 
and  by  this  proceeding  in  the  nature  of  a  bill  of  interpleader, 
on  payment  of  the  fund  into  court,  the  plaintiff  was  required 
to  substitute  the  defendant's  intestate  as  defendant,  and  the 
object  of  this  action  was  to  determine  the  conflicting  claims 
of  the  plaintiff  and  the  defendant  to  the  fund  in  court. 
Neither  party  had  any  right  of  action  at  law  against  the 


800  Clark  v.  Mosher.  [New  York, 

other,  but  by  this  equitable  proceeding,  authorized  by  the 
code,  the  insurance  company  against  whom,  both  claimed  a 
legal  cause  of  action  was  discharged,  and  they  were  brought 
together  to  litigate  the  question  which  of  them  had  the  better 
right  to  the  fund  in  controversy.  No  right  of  trial  by  jury 
ever  existed  in  such  a  case. 

The  order  of  the  general  term  should  be  reversed,  and  that 
of  the  special  term  affirmed,  with  costs. 

Ordered  accordingly. 


Effect  of  Sdbstitutino  One  Person  fob  Another  as  Defendant — 
Pleading,  Practice,  Form  of  Judgment,  etc.  —  Nature  0/ Proceeding  to  SiA' 
atitule,  and  Effect  of.  —  The  principal  case  ia  ao  instance  of  the  substitution  of 
one  person  for  another  aa  defendant  under  section  820  of  the  New  York  Code 
of  Civil  Procedure,  which  provides  for  interpleader  on  motion.  This  statu- 
tory remedy  of  interpleader  has  been  adopted  in  most  of  the  states,  and  is 
said  to  be  merely  a  summary  method  of  obtaining  relief  in  cases  where  a  bill 
of  interpleader  would  lie;  and  it  ia  held  to  be  governed  in  general  by  the  same 
rules  as  equitable  interpleader:  See  Shaio  v.  Coster,  35  Am.  Dec.  710,  711, 
note,  where  the  cases  are  collected,  and  the  subject  of  interpleader  discussed 
at  length.  It  waa  not  the  design  of  the  statute  to  introduce  new  cases  of  in- 
terpleader,  but  merely  to  provide  a  summary  proceeding  where  interpleader 
is  proper:  Delano/  v.  Murphy,  24  Hun,  503;  Pustet  v.  Flannelly,  60  How.  Pr.. 
67.  And  the  principles  which  govern  the  remedy,  either  in  equity  or  under 
the  statute,  are  alike:  Cronin  v.  Cronin,  9  Civ.  Proc.  Rep.  137;  Venahle  v. 
New  York  etc.  Fire  Ins.  Co.,  17  Jones  &  S.  481.  If  no  relief  could  be  obtained 
by  bill  in  equity  for  interpleader,  then  it  would  be  an  indefensible  exercise 
of  judicial  discretion  and  power  to  make  the  substitution,  on  motion,  under 
the  statute:  Delano/  v.  Murphy,  24  Hun,  503;  and  see  Nassau  Bank  v. 
Yandes,  44  Id.  55.  Nevertheless,  statutory  interpleader  is  a  remedy  de- 
signed iot  use  in  common-law  courts.  It  permits  the  defendant,  in  an  action 
at  law,  to  obtain,  in  a  summary  Way,  in  that  action,  the  same  relief  that  he 
might  obtain  by  filing  a  bill  of  interpleader  in  a  court  of  equity:  McElroy  v. 
Baer,  9  Civ.  Proc.  Rep.  133.  And  the  remedy  should  not  be  so  restricted, 
or  clogged  by  technical  qualifications,  as  to  deprive  it  of  any  of  the  advan- 
tages intended  to  be  secured  by  it  under  a  just  and  liberal  construction  and 
application  of  the  statute:  Barnes  v.  Mayor  etc.,  27  Hun,  236,  240;  and  see 
Koenig  v.  New  York  L{fe  Ins.  Co.,  14  N.  Y.  250;  Shipman  v.  Scott,  12  Civ. 
Proc.  Rep.  109;  but  compare  New  Englajid  Mut.  L.  Ins.  Co.  v.  Keller,  7  Id. 
109.  But  statutory  provisions  authorizing  the  substitution  of  indemnitors  aa 
defendants  in  place  of  the  sheriff  (see  N.  Y.  Code  Civ.  Proc,  sees.  1421-1427) 
are  said  to  be  innovations  in  the  law,  and  so  seriously  modify  the  ordinary 
common-law  rule  of  liability  as  to  require  a  very  clear  case  to  be  made  out 
before  the  court  will  direct  such  substitution:  Berg  v.  Grant,  18  Abb.  N.  C. 
449;  and  compare  Hayes  v.  Davidson,  98  N.  Y.  19.  See,  on  the  subject  of 
interpleader  by  sheriffs,  Sliaw  v.  Coster,  35  Am.  Dec.  711,  712,  note. 

The  effect  of  the  statutory  proceeding,  whereby  one  person  is  substituted 
for  another  as  defendant,  is,  according  to  the  ruling  in  the  principal  case,  to 
change  an  action,  legal  in  its  nature,  into  an  equitable  suit;  and  the  principles 
which  govern  the  remedy  in  equity  then  apply:  See  also  Venable  v.  New  York 


Oct.  1887J  Clark  r.  Mosher.  80t 

etc.  Fire  Ins.  Co.,  17  Jones  &  S.  481;  Crorun  v.  Cronin,  9  Civ.  Proc.  Rep.  137. 
But  in  giving  construction  to  the  provisions  of  the  Ohio  code,  the  court  held 
that  after  the  substitution  of  the  new  party  defendant  the  case  still  remains 
%  civil  action,  and  must  be  proceeded  in  as  a  civil  action:  Maginnia  v.  Sckwai, 
24  Ohio  St.  336.  In  this  case,  the  action  was  for  the  recovery  of  money,  and 
the  original  defendant  caused  a  third  party,  claiming  the  money,  to  be  sub- 
stituted in  his  place,  deposited  the  money  in  court,  and  was  discharged  from 
liability  therefor  under  the  provisions  of  the  code.  An  issue  of  fact  was 
joined  between  the  plaintiff  and  the  new  defendant,  and  it  was  held  that  the 
action  being  for  the  recovery  of  money  only,  either  party  bad  a  right  to  de- 
mand a  trial  of  the  issue  by  a  jury:  Id. 

Pleadino,  Practice,  Form  of  Judgment,  etc.  —  No  particular  mode 
of  procedure  applicable  to  statutory  interpleader  has  been  prescribed,  and  in 
the  absence  of  any  such  provision,  it  is  thought  that  the  practice  should  be,  aa 
far  na  practicable,  that  adopted  by  the  courts  of  equity  in  case  of  interpleader 
in  analogous  cases:  See  Wilson  v.  Lawrence,  8  Hun,  593;  McElroy  v.  Boer,  9 
Civ.  Proc.  Rep.  133;  Nelson  v.  Goree,  34  Ala.  565.  But  it  is  again  said  that 
after  it  is  ascertained  that  a  bill  of  interpleader  is  properly  filed,  there  does 
not  appear  to  be  any  settled  practice  as  to  the  mode  of  proceeding:  City  Bank 
V.  Bangs,  2  Paige,  570;  and  that  the  court,  in  disposing  of  the  questions  in 
dispute  among  the  defendants  to  a  bill  of  interpleader,  is  at  liberty  to  adopt 
any  recognized  method  of  trial  which  will  best  accomplish  justice  in  the  par- 
ticular case:  Kirtlandv.  Moore,  40  N.  J.  Eq.  106.  It  appears,  however,  to 
be  settled,  that  after  it  has  been  determined  that  interpleader  will  lie,  then, 
upon  bringing  the  money  or  other  thing  in  dispute  into  court,  the  plaintiff 
should  be  discharged  from  liability,  and  the  action  proceed  upon  the  issues 
between  the  parties  defendant:  CuUen  v.  Dawson,  24  Minn.  66;  Cogsvoell  v. 
Armstrong,  77  111.  139;  and  see  Shaw  v.  Coster,  35  Am.  Dec.  708,  note.  The 
plaintiff  is  entitled  to  be  dismissed,  with  costs:  City  Bank  v.  Bangs,  2  Paige, 
670;  State  Ins.  Co.  v.  Oennett,  2  Tenn.  Ch.  100.  If,  at  the  hearing  on  the 
bill,  the  questions  in  which  the  defendants  are  alone  interested  are  stated 
with  sufficient  clearness  and  certainty  in  the  answers  to  the  bill  to  present 
proper  issues,  and  they  are  ripe  for  decision,  the  court  may,  at  the  same 
time  that  it  decides  the  question  whether  the  bill  was  properly  filed  or  not, 
also  decide  questions  at  issue  among  the  defendants,  and  dispose  of  the  case 
finally.  But  if  the  case,  aa  among  the  defendants,  is  not  at  that  time  in  con- 
dition to  be  properly  disposed  of,  the  court  may  then  adopt  such  course  as  may 
seem  best,  as  by  directing  that  issue  shall  be  raised  by  appropriate  plead- 
ings, or  that  an  action  at  law  shall  be  brought,  or  that  such  other  course 
shall  be  taken  as  may  seem  best  suited  to  the  nature  of  the  case:  Executor* 
etc  V.  King,  13  N.  J.  Eq.  375;  Kirtland  v.  Moore,  40  Id.  106;  State  Ins.  Co.  ▼. 
OenneU,  2  Tenn.  Ch.  100;  and  see  Shaw  v.  CoUer,  35  Am.  Dec.  709,  note. 

Under  Indiana  practice,  interpleader  is  a  case  of  exclusive  equitable  juris* 
diction  not  triable  by  jury,  in  view  of  certain  statutory  provisions  on  the 
subject.  In  such  case  the  court  may,  however,  take  the  verdict  of  a  jury 
npon  such  questions  of  fact  as  it  shall  determine,  merely  for  its  information, 
but  the  jury  cannot  find  a  general  verdict.  Nor  is  the  court  concluded  by 
the  findings  of  the  jury,  but  the  decree  must  be  made  as  the  result  of  its 
own  judgment  upon  the  evidence,  aided  merely  by  the  jury.  Instructions 
to  the  jury,  given  or  refused,  or  the  admission  or  rejection  of  evidence,  can- 
not therefore  be  cause  for  a  new  trial,  nor  can  the  refusal  of  the  court  to 
require  the  jury  to  make  more  specific  answers:  Ketcham  v.  BtumU  Block  Coal 
Co.,  88  Ind.  515;  and  see  Nq/singer  v.  BeynoitU,  52  Id.  218;  Dunphy  r.  Klidn- 
Am.  gT.Bsp.,  V0L.L-" 


802  Clark  v.  Mosher.  [New  York, 

mnitkt  11  WalL  610.  Compare  CuUen  v.  Datoson,  24  Miim.  66,  as  to  Minnesota 
practice  in  interpleader  proceedings. 

It  has  been  held  in  New  York,  in  conformity  with  the  suggestion  made  in 
Moak's  Van  Santvoord'a  Pleading,  358,  that  where,  upon  the  application  of 
the  defendant,  an  order  is  made  in  pursuance  of  the  provisions  of  the  code, 
directing  that  he  pay  into  court  the  money,  to  recover  which  the  action  is 
brought,  and  that  a  third  person  by  whom  the  same  is  claimed  be  substi- 
tuted as  defendant  in  his  place,  the  plaintiff  should  apply  for  leave  to  serve 
a  supplemental  complaint,  setting  forth  such  additional  facts  as  may  be  neces- 
sary to  show  that  he  has  a  right  to  recover  the  amount  claimed  as  against 
the  defendant.  If  the  plaintiff  fails  to  do  so,  and  proceeds  to  trial  upon  the 
original  complaint,  the  substituted  defendant  may  move  to  dismiss  it,  on  the 
ground  that  as  to  him  it  does  not  state  facts  sufficient  to  constitute  a  cause  of 
action:  Wilson  v.  Lawrence,  8  Hun,  593;  see  1  Boone's  Code  Pleading,  sec.  40. 
The  order  of  interpleader  served  with  the  complaint  should  require  the  party 
brought  in  by  the  interpleader  to  appear  and  answer  the  complaint  in  the 
same  time  that  a  defendant  is  required  to  answer  a  summons,  and  should 
provide  that  the  money  in  court  be  paid  to  the  plaintiff  in  case  of  the  failure 
to  appear  and  answer  of  the  party  who  is  interpleaded:  McElroy  v.  Boer,  9 
Civ.  Proc.  Rep.  133;  and  see  Van  Buakirk  v.  Rot/,  8  How.  Pr.  425;  FUtdur 
V.  Troy  Savings  Bank,  14  Id.  383. 

If  the  party  appears  and  answers,  the  issues  raised  may  be  tried  by  the 
court,  unless  a  jury  is  demanded  at  the  time  of  the  joinder  of  issue:  Mc- 
Elroy  T.  Baer,  9  Civ.  Proc.  Rep.  133.  The  substituted  defendant,  by  his 
answer  to  such  a  complaint,  can  present  proper  issues  for  trial,  and  the  court 
can  render  an  intelligible  judgment  upon  the  issues  thus  presented:  Moak's 
Van  Santvoord's  Pleading,  350.  Upon  the  entry  of  judgment,  the  money 
must  be  paid  to  the  prevailing  party,  unless  an  undertaking  sufficient  to 
stay  proceedings  be  given:  McElroy  v.  Baer,  9  Civ.  Proc.  Rep.  133.  Costs 
should,  in  general,  be  awarded  against  the  losing  party:  Id.;  but  under  spe- 
cial circumstances,  the  award  of  costs  is  discretionary  with  the  court,  and 
they  may  be  allowed  or  withheld  according  to  equitable  principles,  and  in 
furtherance  of  justice:  Cronin  v.  Cronin,  9  Id.  137;  and  see  Bedell  v.  Hoff- 
man, 2  Paige,  199;  AtUnson  v.  Marks,  1  Cow.  691;  Columbian  Building  Ass'n 
V.  Crump,  42  Md.  195. 

The  plaintiff  in  a  bill  of  interpleader,  or  a  defendant  who  obtains  a  statu- 
tory order  of  interpleader,  should  offer  to  pay  into  court  any  money  and 
interest  which  is  due  from  him.  But  where  there  was  an  offer  to  pay  over 
the  fund  on  being  indemnified,  which  offer  was  refused,  and  the  bill  had 
been  filed  with  reasonable  diligence,  the  plaintiff  was  not  charged  with  in- 
terest on  the  money  deposited  in  court:  Richards  v.  Salter,  6  Johns.  Ch.  445. 

A  decree  passed  upon  the  filing  of  a  bill  of  interpleader,  ordering  the 
complainant  to  pay  the  money  into  court,  and  requiring  the  defendants  to 
interplead  and  answer,  is  held  to  be  interlocutory,  settling  the  rights  of  no 
party,  and  is  at  all  times  prior  to  a  final  decree  subject  to  reversion  and 
alteration,  being  merely  ancillary  to  further  proceedings,  and  does  not  re- 
quire a  bill  of  review  to  vacate,  amend,  or  rescind  the  same:  Barth  v.  Rosen' 
/eld,  36  Md.  604;  Owings  v.  Rhodes,  65  Id.  408. 


Oct.  1887.]      Lynch  v.  First  National  Bank.  803 

Lynch  v.  First  National  Bank  of  Jersey  City. 

ri07  New  Yoek,  179.J 

Bank  13  NOT  Liable  to  Pat  Check  Drawn  thereon  by  a  depositor,  ex- 
cept by  its  acceptance  thereof  ia  writiag. 

Bank  Accepts  Check  Deawn  thereon,  when  it  indorses  upon  it  a  certifi- 
cate of  genuineness,  and  directs  its  payment  at  another  bank.  Such  in- 
dorsement is  equivalent  to  a  representation  that  the  drawer  has  funds  in 
the  bank  with  which  to  pay  the  check,  and  that  the  bank  will  retain 
such  funds  and  pay  the  check  at  the  bank  designated. 

Belatton  between  Bank  and  Defositok  is  that  of  debtor  and  creditor, 
and  the  bank  holds  the  fund  subject  to  be  paid  out  to  the  creditor,  ac- 
cording to  the  terms  and  conditions  imposed  by  him. 

Check  Drawn  by  Depositor,  Payable  to  Himself  or  Order  and  ac- 
cepted by  the  beink,  does  not  impose  on  it  any  obligation  to  pay  the 
check  to  one  to  whom  the  drawer  delivered  the  check  without  indorse- 
ment, in  payment  of  a  purchase  made  by  him. 

Action  upon  a  check  drawn  by  F.  F.  Wilder,  payable  to  him- 
Belf  or  order,  and  by  him  delivered  to  plaintiff.  Judgment  for 
plaintiff,  which  was  aflBrmed  by  the  general  term.  Defendant 
appeals. 

Hamilton  Wallis,  for  the  appellant. 

Abram  Kling,  for  the  respondent. 

By  Court,  Ruqer,  C.  J.  It  is  desirable  in  the  first  instance 
to  precisely  determine  the  questions  which  are  presented  by 
the  record  before  us. 

The  evidence  is  very  brief,  and  not  in  any  respect  conflict- 
ing, unless  the  facts  proved  are  fairly  susceptible  of  opposite 
inferences  in  different  minds.  At  the  close  of  the  plaintiff's 
case,  the  defendant  moved  for  a  dismissal  of  the  complaint 
without  stating  the  grounds  therefor,  and  upon  the  refusal  of 
the  court  to  grant  the  motion,  took  an  exception.  After  the 
evidence  was  all  in,  the  court  directed  a  verdict  for  the  plain- 
tiff, to  which  direction  the  defendant  also  took  an  exception. 

These  two  exceptions  present  the  material  points  in  the 
case.  No  request  was  made  by  either  party  to  go  to  the  jury 
upon  questions  of  fact,  and  the  only  question  presented  by 
the  exceptions  is,  whether  upon  any  view  of  the  evidence  the 
plaintiff  was  entitled  to  recover.  No  objection  that  any  evi- 
dence was  inadmissible  under  the  pleadings  was  made,  and 
the  action  was  tried  and  decided  upon  the  whole  case  as  pre- 
sented by  the  proof  without  objection.  From  that  it  appeared 
that  one  F.  F.  Wilder  purchased  of  the  plaintiff  a  diamond 
of  the  value  of  five  hundred  dollars,  and  delivered  to  her  in 


804  Lynch  v.  First  National  Bank.     [New  York, 

payment  therefor  a  check  signed  by  himself,  and  reading  with 
its  indorsements,  as  follows: — 

"Jersey  City,  N.  J.,  June  1,  1883. 

"  First  National  Bank,  pay  to  myself  or  order  five  hundred 
dollars.  ,  F.  F.  Wilder." 

"  Certified: 

"  First  National  Bank,  Jersey  City. 

"  Payable  at  the  American  Exchange  National  Bank,  New 
York.  Omberson." 

Indorsed:  "T.  Lynch  R." 

This  check  was  not  indorsed  by  Wilder.  Omberson  was 
assistant  cashier  of  the  defendant,  authorized  to  certify  checks, 
and  certified  the  one  in  question  on  June  1, 1883,  at  the  request 
of  the  drawer,  while  still  in  his  possession,  and  who  at  that 
time  had  funds  in  the  bank.  Upon  this  evidence,  it  is  clear 
that  there  was  no  contract  made  between  Wilder  and  the 
plaintiff  whereby  any  transfer  of  the  deposit  in  the  bank  was 
intended  to  be  made,  beyond  that  which  would  follow  the  mere 
delivery  of  any  check.  The  action  can  be  supported  only  by 
proof  that  all  of  the  conditions,  upon  which  the  authority  of 
the  bank  to  pay  the  check  was  made  to  depend  by  the  drawer, 
had  been  performed:  Freund  v.  Importers'  and  Traders'  Banky 
76  N.  Y.  352,  357. 

It  therefore  seems  to  us  that  the  only  question  in  the  case 
is,  whether  the  bank  could  be  made  liable  to  pay  to  third  per- 
sons Wilder's  funds  by  any  transfer  of  this  check,  except  one 
evidenced  by  the  indorsement  of  his  name  thereon.  It  is  well 
settled  by  authority  that  the  mere  drawing  and  delivery  of  a 
bank  check  to  a  third  person  by  a  depositor  does  not  constitute 
an  assignment  to  the  payee  therein  named  of  the  fund  held  by 
such  bank:  ^tiia  Nat.  Bank  v.  Fourth  Nat.  Bank,  46  N.  Y.  82; 
7  Am.  Rep.  314;  Commercial  Bank  of  Albany  v.  Hughes^  17 
Wend.  94.  A  check  is  analogous  to  a  bill  of  exchange,  and  a 
bank  cannot  be  made  liable  thereon  except  by  its  acceptance 
indorsed  upon  it  in  writing:  Risley  v.  Phoenix  Bank,  83  N.  Y. 
318;  38  Am.  Rep.  421.  An  acceptance  of  the  check,  however, 
was  made  by  the  bank,  we  think,  when  through  its  agent  it 
indorsed  thereon  a  certificate  of  genuineness,  and  directed  its 
payment  by  the  American  Exchange  Bank.  That  operated  as 
a  promise  to  pay  it  upon  presentation  at  the  American  Ex- 
change Bank,  bearing  Wilder's  indorsement.  The  obligation 
of  the  bank  as  shown  thereby  amounts  to  a  representation  that 
the  drawer  has  funds  in  the  bank  with  which  to  pay  the  check, 


Oct.  1887.]      Lynch  v.  First  National  Bank.  805 

and  that  it  will  retain  and  pay  them  to  the  holder  through  its 
agency  in  New  York  upon  presentation  there  bearing  the  proper 
indorsements:  Farmers^  and  Merchants^  Bank  v.  Butchers^  and 
Drovers'  Bank,  14  N.  Y.  623;  16  Id.  125;  28  Id.  425;  Security 
Bank  v.  Nat.  Bank,  67  Id.  458,  460;  23  Am.  Rep.  129;  Clews 
V.  Bank  of  New  York,  89  N.  Y.  418;  42  Am.  Rep.  303. 

Such  a  contract  the  bank  had  a  right  to  make,  limiting  its 
liability  to  an  order  indorsed  by  the  depositor  or  his  payee, 
and  the  depositor  had  the  right  to  impose  upon  the  bank  the 
condition  that  his  money  should  be  paid  out  by  it  only  upon 
a  check  indorsed  by  himself  or  its  payee.  If  the  bank  should 
disregard  such  a  requirement,  it  would  do  so  at  its  own  risk, 
but  the  holder  has  no  legal  right  to  impose  such  a  liability 
upon  it  against  its  consent.  It  would  certainly  add  much  to 
the  hazard  of  the  transmission  of  funds  by  check,  draft,  or 
otherwise,  through  the  mail  or  express,  if  the  banks  or  agen- 
cies upon  which  they  were  drawn  should  be  compelled  to  pay 
them  to  the  holder  by  an  action  at  law,  where  they  do  not 
bear  upon  their  face  the  evidence  of  the  performance  of  the 
condition  upon  which  the  drawer  has  authorized  their  pay- 
ment. 

It  was  held  in  Freund  v.  Importers*  and  Traders*  Bank,  supra, 
that  a  certification  by  the  bank  of  a  check  in  the  hands  of  a 
holder  who  had  purchased  it  for  value  from  the  payee,  but 
which  had  not  been  indorsed  by  him,  rendered  the  bank 
liable  to  such  holder  for  the  amount  thereof.  By  accepting 
the  check,  the  bank  took,  as  it  had  the  right  to  do,  the  risk  of 
the  title  which  the  holder  claimed  to  have  acquired  from  the 
payee.  In  such  case  the  bank  enters  into  contract  with  the 
holder  by  which  it  accepts  the  check  and  promises  to  pay  it 
to  the  holder,  notwithstanding  it  lacks  the  indorsement  pro- 
vided for,  and  it  was  accordingly  held  that  it  was  liable  on 
Buch  acceptance  upon  the  same  principles  that  control  the 
liabilities  of  other  acceptors  of  commercial  paper.  In  the 
case  at  bar,  the  certification  of  the  bank  was  made  at  the  re- 
quest of  the  drawer,  and  was  subject  to  the  condition  imposed 
by  him,  plainly  written  in  the  check,  that  it  should  not  there- 
after be  payable  except  by  his  indorsement.  The  relation  ex- 
isting between  a  bank  and  its  depositor  is  that  of  debtor  and 
creditor,  and  the  bank  holds  the  fund  subject  to  be  paid  out 
upon  the  direction  of  the  creditor,  according  to  the  terms  and 
conditions  imposed  by  him:  ^tna  Nat.  Bank  v.  Fourth  Nat. 
Bank,  46  N.  Y.  82;  7  Am.  Rep.  314;  Crawford  v.  West  Side 


806  Lynch  v.  Fibst  National  Bane.     [New  York, 

Bank,  100  N.  Y.  50,  56;  53  Am.  Rep.  152.  The  bank's  pro- 
tection in  the  payment  of  checks  consists  in  the  fact  that  it 
has  followed  strictly  the  depositor's  directions  in  disbursing 
his  funds.  Where  a  depositor  has  imposed  the  condition  that 
his  check  shall  not  be  paid  without  it  bears  his  indorsement, 
the  depository,  if  it  pays  it  to  a  holder  without  such  indorse- 
ment, runs  the  risk  of  the  transaction,  and  takes  the  burden 
of  showing  that  such  holder  has  acquired  in  some  way  the 
lawful  title  to  receive  the  funds.  It  may  successfully  defend 
such  a  payment  if  it  can  show  that  it  made  it  to  a  person  who, 
as  against  the  drawer,  was  legally  entitled  to  receive  it,  for  in 
that  event  the  drawer  would  suffer  no  damage  thereby. 

It  was  held  in  Risley  v.  Phoenix  Bank,  83  N.  Y.  318,  38  Am. 
Rep.  421,  that  a  parol  contract  by  a  depositor  for  the  transfer 
of  the  whole  or  any  part  of  his  deposit  is  valid  in  law,  and 
invests  the  transferee  with  the  right  to  sue  for  and  recover  the 
amount  of  such  deposit,  or  such  part  thereof  as  was  intended 
to  be  transferred.  It  was  also  held  in  the  same  case  that  a 
depositor  might  concurrently  with  the  delivery  of  a  check  to  a 
third  person  enter  into  such  a  contract  by  parol  as  would 
transfer  the  fund  represented  by  the  check  to  the  person 
named  therein. 

In  such  a  case  the  liability  of  the  depository  is  not  predi- 
cated upon  the  check,  but  that  is  used  in  connection  with  the 
parol  agreement,  as  evidence  of  the  contract  transferring  the 
fund:  Oneida  Bank  v.  Ontario  Bank,  21  N.  Y.  490;  Risley  v. 
Phcenix  Bank,  supra.  The  action  arises  upon  the  contract  of 
assignment,  and  not  upon  the  check. 

We  are  of  the  opinion  that  the  evidence  in  this  case  did  not 
authorize  the  trial  court  to  find  that  Wilder  intended  to  trans- 
fer any  part  of  his  deposit  to  the  plaintiff,  and  there  is  no  other 
theory  upon  which  the  action  can,  under  the  evidence,  be 
maintained.  The  verdict  was,  therefore,  improperly  directed 
for  the  plaiatiff. 

The  judgments  of  the  courts  below  should  be  reversed,  and 
a  new  trial  ordered,  with  costs  to  abide  the  event. 

Judgment  reversed. 


Action  mat  bb  Brought  on  Indorsed  Note,  payable  to  a  particular  per- 
Bon,  by  one  who  is  not  the  payee:  Jackson  v.  Love,  33  Am.  Rep.  685.  Holder 
of  a  note  or  bill  is  the  presumed  owner:  Weaily  v.  Bell,  36  Am.  Dec.  126,  note; 
White/ord  v.  Burckmyer,  39  Id.  657,  note.  Purchaser  of  an  unindorsed 
promissory  note,  payable  to  order,  acquires  title  to  such  note,  but  not  the 
rights  of  a  &ona^(Ze  holder:  ilfoore  v.  ilfjVfer,  25  Am.  Hep.  618;  mere  possession 


Oct.  1887.]      ScARFP  V.  Metcalp.  807 

of  third  party  of  Buch  note  is  not  even  prima  fade,  evidence  of  title  in  holder 
as  against  payee:  VaMxnt  v.  Wilding,  100  Am.  Dec.  347.  Holder  of  a  note 
payable  to  order,  and  indorsed  in  blank,  may  maintain  suit:  Johnson  v. 
Mitdiell,  32  Am.  Rep.  602;  Kunkel  v.  Spooner,  66  Am.  Dec.  332.  Note  payable 
to  the  order  of  two  persons  who  are  not  partners,  and  indorsed  by  one  in  the 
name  of  both,  does  not  pass  title  of  both:  Ryhmer  v.  Fillkert,  34  Am.  Rep.  130. 
As  to  rights  of  possessor  of  unindorsed  negotiable  paper  not  payable  to  bearer, 
see  note  to  Vastinev.  Wilding,  100  Am.  Dec.  351.  Agent  may  sue  in  his  owu 
name  upon  a  negotiable  note  payable  to  order,  indorsed  in  blank:  Pearcev. 
Austin,  34  Id.  523.  Pledgee  may  maintain  action  on  an  unindorsed  note,  held 
as  collateral  security  in  default  of  payment  secured  by  note:  White  v.  Phelps, 
100  Id.  190.  Indorsee  can  maintain  action  on  note  without  proving  considerao 
tion:  KnigJd  v.  Pugh,  39  Id.  99. 


SOARFF   V.    MeTOALF. 
1107  New  York,  211.] 

Sick  or  Injttbed  Seamen  are  Entitled  to  be  Cared  tor  and  Cured 
at  the  expense  of  the  ship,  and  not  to  be  turned  adrift  in  strange  lands 
without  adequate  provision. 

Owners  of  Ship  are  Answerable  for  Negligence  of  Master  in  render- 
ing  care  or  medical  aid  to  sick  or  injured  seamen. 

Neglect  of  Master  of  Vessel,  whereby  the  mate  was  not  properly  cared 
for  while  injured,  is  not  the  neglect  of  a  fellow-servant. 

Cost  of  Nttrsino  and  Medical  Attendance  for  Sick  or  Disabled  Sea- 
MAN  Falls  upon  Ship,  although  he  may  have  been  removed  to  hb  own 
house. 

Damages  for  Injxtries  to  Sick  or  Injured  Seaman,  resulting  from  ne- 
glect of  owners  of  ship,  or  of  the  master,  as  their  representative,  may  be 
recovered  by  proceedings  in  rem  against  the  vessel,  or  by  action  against 
the  owner. 

Owners  of  Vessel  are  not  Relieved  from  Liabilttt  for  Neglect  to 
Sick  or  Injured  Seaman  by  an  agreement  with  the  master  to  sail  the 
vessel  on  the  shares,  he  to  man  the  vessel,  victual  the  crew,  and  pay  the 
running  expenses  for  one  half  of  the  gross  earnings.  The  owners  can  be 
relieved  by  nothing  short  of  an  actual  demise  of  the  vessel,  such  as  takes 
from  them  all  possession,  authority,  or  control. 

Action  by  ScarflF  against  Yates  and  Metcalf  to  recover  for 
injuries  resulting  from  neglect  of  plaintiff  while  he  was  serving 
in  the  capacity  of  mate  of  a  barkentine  owned  jointly  by  the 
defendants.  Yates  acted  as  master,  and  Metcalf  claimed  that 
he  was  not  liable  because  of  a  contract  whereby  the  vessel  was 
sailed  on  the  shares,  as  stated  in  the  opinion.  The  cause  was 
tried  before  a  jury,  who  returned  a  verdict  for  plaintiff,  and 
the  judgment  entered  upon  such  verdict  was  affirmed  on  ap- 
peal to  the  general  term.  From  such  judgment  of  affirmance 
this  appeal  was  taken. 


808  ScARFP  V.  Metcalp.  [New  York, 

Joseph  A.  Shoudyj  for  the  appellants. 
William  Sullivan,  for  the  respondent. 

By  Court,  Finch,  J.  The  verdict  of  the  jury  requires  us  to 
adopt  the  plaintiflF's  version  of  the  facts,  since  the  judgment 
was  in  his  favor,  and  the  negligence  of  the  master  thereby  es- 
tablished. If  that  judgment  was  against  him  alone,  very  little 
question  would  arise;  but  it  involves  another  owner,  not  on 
board  the  vessel,  but  remaining  at  home,  and  so  situated  in 
his  relation  to  the  facts  as  to  make  necessary  their  careful 
consideration. 

The  barkentine  upon  which  plaintiff  was  injured,  while  em- 
ployed as  mate,  was  owned  by  defendants.  She  was  sailed 
by  defendant  Yates  as  master,  on  shares,  by  virtue  of  an 
agreement  with  the  other  owners  to  that  effect.  The  agree- 
ment was  not  in  writing,  and  is  detailed  solely  by  the  two 
owners,  each  of  whom  testified  to  its  existence.  The  vessel 
started  on  a  voyage  to  Sagua  la  Grande,  in  Cuba,  and  when 
eome  distance  at  sea  the  plaintiff  received  an  injury  in  the 
performance  of  his  duty,  which  developed  into  an  aneurism  of 
the  popliteal  artery,  causing  him  great  pain,  and  largely  inca- 
pacitating him  for  active  service.  The  vessel  was  provided 
with  a  proper  medicine-chest,  and  no  complaint  is  made  that, 
before  arriving  at  the  port  of  destination,  the  master  treated 
his  mate  otherwise  than  with  kindness  and  care,  and  with 
Buch  means  as  his  limited  knowledge  and  opportunity  enabled' 
him  to  use.  But  on  reaching  port,  and  consulting  a  physician, 
it  was  made  apparent  to  the  master  that  surgery,  and  not 
medicine,  was  needed  to  cure  the  injury. 

At  this  point  of  the  case,  the  contradictions  become  plenti- 
ful, but  we  must  assume,  in  support  of  the  verdict,  that  the 
doctor  consulted  disclosed  the  true  nature  of  the  disease;  that 
he  advised  the  removal  of  the  injured  man  to  the  hospital, 
about  fifteen  miles  distant,  or  at  least  to  a  suitable  place  on 
shore;  that  he  pronounced  it  dangerous  to  carry  the  mate 
back  to  New  York  without  an  operation,  if  a  delay  exceeding 
twelve  days  was  involved ;  that  the  plaintiff  requested  a  re- 
moval to  the  hospital  or  to  the  shore,  with  the  provision  usual 
in  such  cases,  and  necessary  to  his  support;  but  that  the 
master  refused  these  requests,  and  kept  him  on  board  till  the 
home  voyage  was  begun  and  ended,  and  more  than  twenty 
days  after  the  doctor's  warning,  landed  the  mate  in  New  York, 
and  placed  him  in  a  hospital,  where  amputation  became  neces- 


Oct.  1887.]  ScABFF  V.  Metcalp. 

eary,  because  of  the  long  delay  and  destructive  progress  of  the 
disease.  It  is  of  little  consequence  to  the  liability  of  Yates 
whether  he  be  regarded  as  master  or  owner,  for  in  either  char- 
acter the  negligence  was  his,  and  drew  with  it  a  personal 
responsibility. 

The  maritime  law  is  sensitive  to  the  rights  of  seamen  and 
sedulous  for  their  protection.  When  sick  or  injured,  they  are 
entitled  to  be  cared  for  and  cured  at  the  expense  of  the  ship, 
and  not  to  be  turned  adrift  in  strange  lands  without  adequate 
provision.  They  are  exposed  to  hardship,  confronted  with 
dangers,  and  grow  occasionally  reckless  by  their  very  familiar- 
ity with  peril.  The  master's  authority  is  quite  despotic,  and 
sometimes  roughly  exercised,  and  the  conveniences  of  a  ship 
out  upon  the  ocean  are  necessarily  narrow  and  limited.  That 
which  on  land  would  be  contributory  negligence  the  maritime 
law  scarcely  recognizes,  and  readily  excuses:  The  City  of  Alex- 
andria, 17  Fed.  Rep.  390,  395;  and  in  many  ways  throws  its 
protection  around  the  seaman.  When  he  falls  sick  or  suffers 
injury,  the  owners  owe  to  him  the  duty  of  rendering  such  care 
and  medical  aid  as  circumstances  permit,  and  in  the  perform- 
ance of  that  duty  the  master  stands  as  the  agent  and  repre- 
sentative of  the  owners,  and  his  negligence  is  theirs:  Petersen 
v.  Swan,  50  N.  Y.  46;  The  City  of  Alexandria,  supra;  Reed  v. 
Canfield,  1  Sum.  195;  Harden  v.  Gordon,  2  Mason,  541,  543. 
The  last-cited  case  considers  the  effect  of  the  act  of  Congress 
requiring  the  ship  to  be  supplied  with  a  suitable  medicine- 
chest,  and  holds  that  such  requirement  does  not  subvert  the 
general  duty  imposed  upon  the  owners  by  the  maritime  law, 
but  merely  regulates  a  single  detail  of  its  exercise.  This  duty 
the  owners,  who  remain  at  home,  and  do  not  sail  upon  the 
ship,  can  only  perform,  beyond  supplying  the  medicine-chest, 
through  the  master,  who. becomes  their  agent  for  its  perform- 
ance. The  mate,  although  an  ofl&cer,  is  a  seaman:  Holt  v. 
Cummings,  102  Pa.  St.  212;  48  Am.  Rep.  199;  Ocean  Spray,  4 
Saw.  105;  The  Minna,  11  Fed.  Rep.  759.  While  both  he  and 
the  master  are  servants  of  the  owner,  and  so  fellow-servants, 
they  are  not  such  in  respect  to  the  owners'  duty  to  the  seamen 
which  the  master  performs  in  their  behalf  and  as  their  repre- 
sentative, and  the  contention  in  this  case  that  the  master's 
neglect  was  that  of  a  fellow-servant  cannot  prevail. 

Where  the  duty  of  the  owner  to  the  seaman  is  performed, 
the  cost  of  nursing  and  medical  attendance  falls  upon  the  ship: 
North  America,  5  Ben.  486;  and  that  has  been  ruled  even 


810  ScARFF  V.  Metcalp.  [Kew  York, 

where  the  patient  had  been  removed  to  his  own  house:  Holt 
V.  CummingSf  supra.  But  where  that  duty  is  not  performed, 
and  the  seaman  suflfers  injury  from  the  neglect,  the  ship  in  a 
proceeding  in  rem,  and  the  owners  in  a  suit  against  them,  are 
liable  for  the  damages  suffered:  Couch  v.  Steel,  11  Eng.  Com. 
L.  402;  Brown  v.  Overton,  1  Sprague,  463;  Mosely  v.  Scott,  14 
Am.  Law  Reg.  599;  Tomlinson  v.  Hewett,  2  Saw.  278;  Petersen 
V.  Swan,  supra.  These  principles  settle  the  liability  of  Metcalf, 
unless  he  is  discharged  by  force  of  his  arrangement  with  the 
master,  to  which  attention  must  now  be  directed. 

There  is  very  much  of  authority  for  the  doctrine  that  where 
there  is  a  charter  of  the  vessel  which  strips  the  owner  of  all 
authority,  possession,  and  control,  the  charterer  becomes  owner 
pro  hac  vice,  and  the  general  owner  ceases  to  be  liable  for  the 
contracts  or  torts  of  the  master,  except  for  the  wages  of  sea- 
men. There  seem  to  be  limitations  upon  that  doctrine,  and 
doubts  about  it,  although  the  main  drift  of  authority  is  in  that 
direction:  Hallet  v.  Columbian  Ins.  Co.,  8  Johns.  272;  Thorp 
V.  Hammond,  12  Wall.  408;  Thomas  v.  Osborn,  19  How.  22; 
Reynolds  v.  Toppan,  15  Mass.  370;  8  Am.  Dec.  110.  But  I 
have  arrived  at  the  conclusion  that  this  doctrine,  even  if 
broadly  maintained,  applies  only  to  cases  in  which  there  has 
been  an  actual  demise  of  the  vessel,  such  as  to  take  from  the 
owner  all  possession,  authority,  and  control,  and  not  to  cases 
where  there  has  been  merely  a  contract  about  the  vessel  for 
the  division  of  earnings  and  expenses.  There  are  cases  which 
may  justly  be  cited  as  not  in  accord  with  that  conclusion: 
Taggard  v.  Loring,  16  Mass.  336;  8  Am.  Dec.  140;  Cutler  v. 
Winsor,  6  Pick.  335;  17  Am.  Dec.  385;  but  the  current  of  au- 
thority in  this  state  runs  in  its  favor,  and  I  am  strongly  con- 
vinced that  it  is  sound  in  principle  and  just  in  its  application. 
In  Hallet  v.  Columbian  Ins.  Co.,  supra,  there  was  an  actual 
charter  of  the  vessel,  the  owners  receiving  a  stipulated  price 
for  its  use.  In  Thorp  v.  Hammond,  supra,  the  arrangement, 
although  a  letting  on  shares,  is  described  by  the  court  as,  in 
effect,  a  chartering  of  the  vessel,  and  a  surrender  by  the  owner 
of  all  authority  and  control.  The  case  was  one  of  collision, 
and  largely  affected  by  the  terms  and  language  of  the  act  of 
Congress  of  1851.  In  Kernel  v.  Kirh,  Zl  Barb.  113,  where  the 
vessel  was  let  to  the  master  on  shares,  he  to  provide  supplies, 
it  was  ruled  that  there  was  not  a  "  positive  chartering,"  and 
the  owners  were  liable  for  supplies  to  a  vendor  ignorant  of  the 
arrangement.     In  Macy  v.  Wheeler,  30  N.  Y.  241,  it  was  said 


Oct.  1887.]  ScARFF  V.  Metcalp.  811 

that  the  liahility  for  supplies  depends,  not  on  legal  ownership, 
but  possession  and  control.  In  Vose  v.  CocJcroft,  45  Barb.  58, 
60,  there  was  a  written  agreement  that  the  master  should  sail 
the  vessel  on  shares  in  the  customary  way,  he  to  man  and 
provision  her,  pay  one  half  of  port  charges  and  expenses  and 
of  extra  labor,  and  have,  "  as  wages,"  one  half  of  the  gross 
freight.  This  was  held  not  to  be  a  chartering  of  the  vessel, 
and  great  force  was  given  to  the  stipulation  describing  the 
master's  share  as  "  wages."  In  McCready  v.  Thome,  49  Id. 
438,  there  was  a  letting  on  shares,  the  master  to  victual,  man, 
and  sail  the  ship  at  his  own  expense,  pay  port  charges  out  of 
earnings,  and  divide  the  balance  equally  with  the  owners. 
It  was  ruled  that  the  master  was  not  owner  pro  hac  vice,  and 
that  the  general  owners  were  liable  for  unpaid  port  charges. 
A  comparatively  recent  case  in  the  English  courts  discusses 
the  liability  of  the  owner  for  the  negligence  of  the  master, 
where  the  relations  between  them  were  much  like  those  in  the 
Cuse  at  bar:  Steel  v.  Lester,  L.  R,  3  C.  P.  D.  121.  Lester  was 
owner,  and  Lilee  was  captain.  It  was  agreed  between  them 
that  Lilee  should  sail  the  ship  wherever  ho  chose,  be  at  lib- 
erty to  take  or  refuse  any  cargo,  engage  and  pay  the  men, 
and  furnish  all  requisite  supplies,  and  give  Lester  one  third 
of  the  net  profits.  While  the  vessel  was  unloading  at  its  port 
of  destination,  under  a  charter-party  made  by  the  master,  the 
wharf  was  damaged  by  the  sloop  through  the  negligence  of 
Lilee,  and  Lester  was  sued  for  the  damages.  The  court  de- 
cided that  the  arrangement  did  not  amount  to  a  demise  of 
the  vessel,  and  was  not  such  an  absolute  parting  with  it  as 
would  sever  the  control.  These  authorities  indicate  a  distinc- 
tion, which  I  am  content  to  recognize,  between  an  actual  de- 
mise of  the  vessel,  which  transfers  its  possession,  and  all 
authority  and  control  over  it,  and  a  mere  arrangement  for 
the  sailing  of  the  ship,  which  does  not  amount  to  a  demise, 
and  therefore  leaves  some  possession,  authority,  and  control 
in  the  owner,  although  narrowed  and  restricted  by  the  terms 
of  the  agreement.  Unless  there  is  an  actual  demise  of  the 
vessel  which  destroys  the  relation  of  master  and  owner,  and 
substitutes  that  of  bailor  and  bailee,  the  relation  must  con- 
tinue, and  the  master  remain  servant  and  agent  of  the  owner. 
Now,  the  arrangement  between  Yates  and  Metcalf  was 
neither  in  form  nor  substance  a  demise  of  the  vessel.  The 
latter  says  that  the  captain  sailed  her  on  shares;  that  he, 
Metcalf,  had  nothing  to  do  with  the  manning  of  the  vessel  or 


812  ScARFF  V.  Metcalf.  [New  York, 

victualing  of  the  crew,  and  nothing  to  do  with  hiring  the  seamen 
or  paying  the  running  expenses;  that  the  freight  paid  expenses, 
and  the  balance  was  divided  up.  The  master  testified:  "I 
had  an  agreement  with  the  owners  to  sail  freight  on  what  is 
known  as  shares,  that  is,  I  have  half  of  the  gross  stock  of 
earnings  of  the  vessel,  and  pay  for  the  victualing  and  manning 
of  the  vessel,  and  pay  the  tonnage  out  of  my  part  of  the  gross 
earnings";  and  he  added  that  the  owners  had  nothing  to  do 
with  hiring  the  seamen,  victualing  them,  or  furnishing  supplies. 
This  seems  to  me  but  a  mode  of  paying  the  master  for  his 
services.  It  was  not  said  that  he  should  dictate  the  voyages, 
decide  as  to  cargo,  fix  rates  of  freight,  and  absolutely  control 
the  vessel  to  the  exclusion  of  Metcalf.  Indeed,  it  appears  that 
she  was  consigned  to  Metcalf,  and  that  he  exercised  some 
authority  over  her.  His  dividend  from  her  earnings  was  in- 
creased by  the  very  saving  of  expenses  which  the  master 
afiected  at  the  risk  and  to  the  injury  of  the  mate,  and  I  am 
unable  to  resist  the  conclusion,  in  spite  of  the  very  learned  and 
interesting  argument  for  the  appellants,  that  the  judgment 
was  correctly  given  against  both  the  owners. 

The  judgment  should  be  affirmed. 

Judgment  aflfirmed. 


DcTiES  OT  Ship-ownees  TO  Seamen  IK  THEiK  Emplot.  —  As  to  Sea' 
wortJdness  of  Vessel.  —  According  to  the  English  law,  there  is  no  implied 
•warranty  of  seaworthiness  in  a  contract  between  an  owner  of  a  ship  and  a 
seaman  to  serve  on  board  of  it  for  a  particular  voyage:  Couch  v.  Steel,  3  El. 
ft  B.  402;  24  Eng.  L.  &  Eq.  77.  But  the  American  law  is  otherwise,  and 
the  ship-owner,  among  other  obligations  to  the  seamen,  is  bound  to  provide 
a  seaworthy  ship.  Both  law  and  reason  imply  that  at  the  commencement 
of  the  voyage  the  vessel  should  be  seaworthy,  which  means  that  it  should  be 
furnished  with  all  necessary  and  customary  requisites  for  navigation,  including 
a  competent  crew:  Dixon  v.  Ship  Cyrus,  2  Pet.  Adm.  407;  Bice  v.  The  Polly 
and  KiUy,  2  Id.  420;  The  Gentleman,  Olcott,  115;  Tlw  Ship  Moslem,  Id.  289; 
Putnam  V.  Hood,  3  Mass.  481;  The  Planter,  2  Woods,  490;  Halverson  v.  Nisen, 
3  Saw.  562.  And  if  seamen  have  reason  to  believe,  and  do  believe,  that  a 
vessel  is  unseaworthy  before  the  coramencemen'i  of  the  voyage,  they  may 
lawfully  refuse  to  go  to  sea  in  her:  UnUed  States  v.  Oimngs,  1  Sprague,  75; 
United  States  v.  Nye,  2  Curt.  225;  United  States  v.  Ashton,  2  Sum.  13;  or  if, 
after  commencing  the  voyage,  they  become  apprehensive  of  great  danger 
from  unseaworthiness,  it  is  not  mutinous  in  them,  in  a  body,  to  apply 
respectfully  to  the  officers  and  urge  that  tho  ship  be  put  back  to  port:  The 
Moslem,  Olcott,  289;  United  States  v.  Staly,  1  Wood.  &  M.  338.  But  while 
seaworthiness  includes  a  competent  crew,  yet  the  owner  does  not  warrant  to 
each  seaman  the  competency  of  the  others,  all  alike  being  engaged  in  the 
common  employment  of  navigating  the  ship:  Dixon  v.  Tlie  Cyi-us,  2  Pet. 
Adm.  411;   The  Ward  Jr.,  20  Fed.  Rep.  702  (La.);  nor  is  the  owner  an 


Oct.  1887.]       ScABFF  V.  Metcalp.  813 

insurer  or  warrantor  of  the  seamen  against  latent  and  nndiscoverable  defects 
in  the  ship:  The  Lizzie  Frank,  31  Fed.  Rep.  477  (Ala.);  and  see  Riley  v. 
State  Line  Steamship  Co.,  29  La.  Ann.  791;  29  Am.  Rep.  349.  If  a 
vessel  is  constructed  and  equipped  in  the  mode  usual  and  customary  with 
other  vessels  of  like  character,  and  in  a  mode  approved  by  competent  judges 
and  previous  experience,  then,  in  case  of  an  accident  happening  by  reason  of 
a  latent  defect  in  the  equipment  and  construction,  there  is  no  negligence  or 
fault  on  the  part  of  the  owner:  The  Lizzie  Frank,  31  Fed.  Rep.  477  (Ala.); 
Tlie  Rlieola,  22  Blatchf.  124;  The  Harold,  21  Fed.  Rep.  428  (N.  Y.);  and  see 
Sunney  v.  Holt,  15  Id.  880  (Ohio).  The  owners  having  performed  all  that 
can  be  reasonably  done  on  their  part  by  the  proper  equipment  of  the  vessel 
for  the  voyage,  and  the  selection  of  competent  officers  and  a  sufficient  crew, 
no  reason  exists  in  natural  justice  for  holding  them  or  their  vessel  answerable 
for  the  accidents  to  seamen  which  happen  during  the  voyage,  beyond  the 
limits  which  the  maritime  law  has  established:  27ie  City  of  Alexander,  17 
Id.  390  (N.  Y.). 

Aa  to  ProvisionB.  —  Proper  subsistence  is  likewise  a  part  of  the  contract 
between  ship-owners  and  the  seamen  in  their  employ:  Foster  v.  Sampson,  1 
Sprague,  182;  TJie  Mary  Paulina,  1  Id.  45.  And  seamen  may  maintain  an 
action  for  the  recovery  of  damages  sustained  by  them  from  the  willful  or  neg- 
ligent conduct  of  the  master  or  owners  in  respect  to  a  sufficient  supply  of 
good  provisions:  Collins  v.  Wheeler,  1  Sprague,  188;  and  see  United  States  v. 
Mitchell,  3  Wash.  C.  C.  95.  And  it  is  no  defense  to  such  an  action  against  the 
owners  that  the  injuries  were  caused  by  the  master's  default.  The  owners 
are  responsible  for  the  direct  consequences  of  any  wrong-doing  of  the  master, 
which  is  done  by  him  as  master,  in  the  discharge  of  his  duty,  and  under  the 
authority  given  him  as  master:  Baxter  v.  Doe,  142  Mass.  558.  What  is  proper 
subsistence,  such  as  the  owners  are  bound  to  furnish  the  seamen,  depends 
npon  what  is  usual  in  similar  voyages:  Foster  v.  Sampson,  1  Sprague,  182. 

In  Case  of  Sickness  or  Injury.  —  That  seamen  in  the  service  of  a  ship  are  en- 
titled to  be  cured  at  the  expense  of  the  ship,  is  a  well-established  rule  in  th» 
maritime  law:  See  Somerville  v.  The  Francisco,  1  Saw.  393;  Neilson  v.  The 
Laura,  2  Id.  244;  The  Ocean  Spray,  4  Id.  105;  The  Nimrod,  1  Ware,  9;  Sulli. 
van  V.  77t«  Neptuno,  30  Fed.  Rep.  925  (N.  Y.);  The  City  of  Alexandria,  17  Id. 
390  (N.  Y.);  HoU  v.  Cummings,  102  Pa.  St.  212.  And  the  charge  on  the  ship 
includes  not  only  medicines  and  medical  advice,  but  nursing,  diet,  and  lodg- 
ing, if  the  seaman  be  carried  ashore:  Brunent  v.  Taber,  1  Sprague,  243;  Reed 
V.  Canfield,  1  Sum.  195;  Harden  v.  Gordon,  2  Mason,  541;  The  Brandywine, 
1  Newb.  Adm.  6;  HoU  v.  Cummings,  102  Pa.  St.  212.  So  far  as  expenses  are 
incurred  in  the  cure,  whether  they  are  of  a  medical  or  other  nature,  such  as 
for  diet,  lodging,  nursing,  or  other  assistance,  they  are  a  charge  on  and  to  be 
borne  by  the  ship.  The  seaman  is  entitled  to  be  healed  at  the  expense  of  the 
ship,  even  after  the  voyage  has  terminated,  and  he  has  been  discharged:  The 
Liaie  Frank,  31  Fed.  Rep.  477  (Ala.);  The  W.  L.  White,  25  Id.  603  (N.  Y.). 
And  where  the  owners  fail  in  the  performance  of  their  duty  to  render  such 
care  and  medical  aid  to  a  sick  or  injured  seaman  as  the  circumstances  permit, 
and  the  seaman  inffers  injury  from  the  neglect,  the  ship  in  a  proceeding  in 
rem,  and  the  owners  in  a  suit  against  them,  are  liable  for  the  damages  suf- 
f erred:  Brown  v.  Overton^  I  Sprague,  463,  and  other  cases  cited  to  this  point  in. 
the  principal  case;  see  also  Sullimn  v.  The  Neptuno,  30  Fed.  Rep.  925  (N.  Y.). 
Under  the  statutes  of  the  United  States,  the  ship  is  required  to  have  on  board 
a  chest  of  medicines:  See  U.  S.  R.  S.,  sees.  4569,  4570;  but  there  is  no 
law  requiring  the  presence  of  a  physician  or  surgeon.     In  the  absence  of  a 


814  ScARFF  V.  Metcalp.  [New  York, 

physician  or  Burgeon,  in  case  of  an  injury  to  a  seaman  while  in  the  service  of 
the  ship,  it  is  the  duty  of  the  master  to  act  according  to  his  best  judgment, 
and  if  he  is  not  fully  competent  to  follow  the  directions  contained  in  the 
medicine-chest,  he  is  to  extend  such  relief  as  under  all  the  circumstances  is 
reasonable,  until  regular  medical  advice  can  be  procured  with  reasonable  dis- 
patch: Petersen  V.  Swan,  21  Jones  &  S.  151;  and  see  Stacker  x.  Tlte  Vigilant, 
30  Fed.  Rep.  288  (N.  Y.).  But  a  mere  error  of  judgment  on  his  part,  although 
it  may  be  a  grave  one,  is  not  equivalent  to  negligence:  Petersen  v.  Stoan,  21 
Jones  &  S.  151. 

When  a  sick  seaman  abandons  the  service,  he  is  held  to  relinquish  bis  right 
to  be  cured  at  the  ship's  expense:  77ie  Cambridge,  4  Saw.  252.  But  such 
right  is  not  taken  away  or  limited  by  the  acts  of  Congress  (U.  S.  R.  S., 
sees.  4585,  4803),  providing  for  the  collection  from  vessels  of  a  certain  sum 
per  month  for  each  seaman,  as  a  fund  for  the  relief  of  sick  and  disabled  sea< 
men,  and  appropriated  for  the  expenses  of  the  marine  hospital  service.  The 
provisions  of  said  acts  must  be  treated  as  simply  auxiliary  to  the  provision  of 
the  maritime  law:  Holt  v.  Cummings,  102  Pa.  St.  212.  So  the  statutory  re- 
quirement that  the  ship  be  supplied  with  a  suitable  medicine-chest  does  not 
subvert  the  general  duty  imposed  upon  the  owners  by  the  maritime  law,  but 
merely  regulates  a  single  detail  of  its  exercise:  Harden  v.  Gordon,  2  Mason, 
641.  Moreover,  this  right  of  the  seaman  to  medical  care,  nursing,  and  at- 
tendance, and  to  cure,  so  far  as  cure  is  possible,  at  the  expense  of  the  ship,  ia 
without  reference  to  any  question  of  ordinary  negligence  of  himself  or  his 
associates,  and  is  neither  increased  nor  diminished  by  the  one  or  the  other: 
The  City  of  Alexandtia,  17  Fed.  Rep.  390  (N.  Y.);  and  see  Cornwall  v.  The 
New  Torlc,  34  Id.  757;  Tlie  Mabel  Comeaux,  24  Id.  490  (La.).  The  only  quali- 
fication arises  from  the  willful  and  gross  misconduct  of  himself  or  associ- 
ates, in  which  case  it  is  held  that  the  expense  may  be  charged  against  the 
wages  of  the  wrong-doer:  The  City  of  Alexandria,  17  Id.  390  (N.  Y.);  and 
see  Johnson  v.  HucJcins,  1  Sprague,  67;  T7tfi  Nimrod,  1  Ware,  9;  Reed  v. 
Canjield,  1  Sum.  195.  And  in  suits  in  admiralty  to  recover  damages  on 
account  of  personal  injuries,  contributory  negligence  on  the  part  of  the 
libelant  is  not  a  bar  to  his  recovery.  Where  the  fault  which  caused  the 
injury  is  concurrent  or  mutual,  courts  of  admiralty  will  apportion  the  dam- 
ages, or  give  or  withhold  them  in  the  exercise  of  a  sound  discretion,  accord- 
ing to  principles  of  equity  and  justice,  considering  all  the  circumstances 
of  the  particular  case:  Atlee  v.  Packet  Co.,  11  Wall.  389;  77te  Wanderer, 
20  Fed.  Rep.  140  (La.);  The  Explorer,  20  Id.  135  (La.);  Curry  v.  The  Max 
Morris,  28  Id.  881,  and  note  886  (N.  Y.);  The  Dayte^ord,  30  Id.  633  (Ala.); 
Olson  V.  Flavel,  34  Id.  477. 

Wlvere  Ship  is  Sailed  by  Master  "on  Shares." — It  has  been  held  that 
where  a  vessel  is  let  to  a  master  on  shares  he  is  owner  for  the  voyage, 
and  liable  for  supplies:  Kernel  v.  Kirk,  37  Barb.  113;  afi&rmed  2  Abb.  App. 
500;  Lyman  v.  Redman,  23  Me.  289;  Webb  v.  Peirce,  1  Curt.  104.  In  such 
case  it  is  held  that  he  is  not  the  agent  or  servant  of  the  owners:  Manter  v. 
Holmes,  10  Met.  462;  Bonzey  v.  Hodgkins,  55  Me.  98;  Tucker  v.  Stimson,  12 
Gray,  487;  and  that  the  owners  cannot  be  held  liable  for  damages  occasioned 
by  a  collision  happening  through  the  fault  or  negligence  of  the  master,  who 
controls  the  vessel  pro  ?iac  vice,  and  is  sailing  her  on  shares:  Somes  v.  White, 
65  Me.  542;  20  Am.  Rep.  718;  and  see  Thorp  v.  Hammond,  12  Wall.  408.  It 
was,  however,  held  in  Petersen  v.  Swan,  21  Jones  &  S.  151,  following  the 
former  decision  in  the  same  case,  IS  Id.  46,  that  if  the  plaintiff,  who  was  a 
eeaman  on  board  of  a  vessel  of  which  the  defendant  was  part  owner,  and  waa 


I 


Oct.  1887.]        Laubheim  v.  De  K.  N.  S.  Co.  815 

injured  while  in  such  service,  was  negligently  treated  by  the  master,  the  fact 
that  the  ma.ster  sailed  the  vessel  on  what  is  known  as  "  shares,"  so  long  as 
this  did  not  involve  an  entirely  independent  command,  constituted  no  defens« 
to  such  owner.  This  decision  is  founded  upon  the  ruling  in  the  principal 
case,  and  is  likewise  sustained  by  the  English  case  of  Steel  v.  Lester,  1*  R.  3 

a  p.  D.  121. 


Laubheim  v.  De  K.  N.  S.  Co. 

[107  New  Yobk,  228.] 
Wherb  Steamship  Company  Becomes  Bound  by  Law  or  by  Choicb  to 
Provide  Surgeon  for  its  Ships,  its  duty  to  passengers  demands  the 
selection  of  a  reasonably  competent  man  for  that  office,  and  it  is  liable 
for  a  neglect  of  that  duty.  But  the  company  is  responsible  solely  for 
its  own  negligence  in  the  selection  of  a  surgeon,  and  is  not  liable  for  the 
negligence  of  the  surgeon  employed. 

Appeal  from  a  judgment  of  the  general  term  of  the  supe- 
rior court  of  the  city  of  New  York,  which  afl&rmed  a  judgment 
in  favor  of  the  defendant.  The  action  was  one  for  the  re- 
covery of  damages  for  injuries  resulting  from  alleged  negli- 
gence. The  plaintiff  was  a  passenger  on  a  steamship  of  the 
defendant  company,  and  when  at  sea  she  fell  on  deck  and 
fractured  the  knee-cap  of  one  knee.  She  was  treated  by  the 
ship  surgeon,  but,  as  was  claimed,  in  such  a  negligent  manner 
that  after  landing  amputation  of  the  leg  was  necessary.  The 
evidence  showed  that  the  ship  surgeon  had  been  on  the  defend- 
ant's steamships  for  some  years,  receiving  an  annual  salary, 
and  a  certain  sum  for  each  passenger  carried. 

A.  Blumenatiel,  for  the  appellant. 

S.  W.  Rosendale,  for  the  respondent. 

By  Court,  Finch,  J.  It  is  not  necessary  in  this  case  to  de* 
termine  whether,  at  the  date  of  the  accident  to  the  plaintiff, 
the  steamship  company  owed  a  duty  to  its  passengers  to  pro- 
vide a  surgeon  for  their  care  and  safety  in  the  emergency  of 
sickness  or  accident,  or  whether,  having  voluntarily  assumed 
that  duty,  its  position  became  identical  with  that  of  a  carrier 
bound  by  law  to  furnish  such  an  oflBcer,  since  either  proposi- 
tion may  be  granted  without  involving  error  in  the  judgment 
rendered. 

If  by  law  or  by  choice  the  defendant  was  bound  to  provide 
a  surgeon  for  its  ships,  its  duty  to  the  passengers  was  to  se- 
lect a  reasonably  competent  man  for  that  office,  and  it  is  liable, 
only  for  a  neglect  of  that  duty:  Chapman  y.  Erie  R*y  Co., 


816  Hodge  v.  Sloan.  [New  York, 

55  N.  Y.  579;  McDonald  v.  Hospital,  120  Mass.  432;  21  Am. 
Rep.  529;  Secord  v.  St.  Paul  R.  R.  Co.,  18  Fed.  Rep.  221.  It 
is  responsible  solely  for  its  own  negligence,  and  not  for  that  of 
the  surgeon  employed.  In  performing  such  duty,  it  is  bound 
only  to  the  exercise  of  reasonable  care  and  diligence,  and  is 
not  compelled  to  select  and  employ  the  highest  skill  and  long- 
est experience. 

There  was  no  evidence  in  this  case  that  the  defendant  was 
careless  or  negligent  in  its  choice.  The  surgeon  selected  had 
been  upon  the  Rotterdam  line  for  three  years,  and  so  far  as  ap- 
pears was  reasonably  competent  for  his  duty.  If  in  plaintiff's 
case  he  erred  in  his  treatment,  it  does  not  prove  that  he  was 
incompetent,  or  that  it  was  negligence  to  appoint  him.  This 
case  shows  that  one  doctor  of  high  reputation  may  deem  it 
unwise  ever  to  wire  a  broken  knee-cap,  while  another  of  equal 
ability  thought  if  prudent  to  try  the  experiment.  The  experts, 
called  for  the  plaintiflF  decline  to  say  that  the  ship's  doctor 
subjected  the  injury  to  bad  treatment,  taking  into  view  the 
inconveniences  of  a  tossing  ship  and  the  impossibility  of  giv- 
ing absolute  rest  to  the  limb.  This  branch  of  the  plaintiff's 
case  failed,  and  the  trial  court  was  justified  in  a  dismissal  of 
the  complaint. 

The  judgment  should  be  affirmed. 

Judgment  affirmed. 

That  Railway  Coeporation  Employino  Physician  is  not  answerable 
for  his  negligence,  if  he  is  a  competent  physician,  was  asserted  in  the  charge 
to  the  jury  in  Secord  v.  SL  Paul  S.  R.  Co.,  18  Fed.  Rep.  221. 


Hodge  v.  Sloan. 

[107  New  York,  244.] 

CoNTBACT  vf  Restraint  ov  Trade  is  Valid,  if  it  imposes  no  restriction 
upon  one  party  not  beneficial  to  the  other,  and  was  induced  by  a  con> 
sideration  which  made  it  reasonable  for  the  parties  to  enter  into  it. 

Covenant  by  Owner  of  Land  to  Use  or  to  Abstain  from  Usinq  It,  in 
such  a  manner  as  the  other  party  to  the  contract  specifies,  will  be  en« 
forced  in  equity  against  the  grantees  of  the  original  covenantor. 

AOREEUENT    BETWEEN    GrANTOR    AND    GraNTEE,   THAT    LaTTER    WILL    NOT 

Sell  Any  Sand  off  of  Premises  conveyed  to  him  by  the  former, 
will  be  enforced  in  equity  against  the  grantee  and  his  successors  in  in- 
terest, where  it  appears  that  the  grantor  exacted  such  agreement  as  a 
condition  precedent  to  the  sale,  he  being  engaged  in  the  business  of  sell- 
ing  sand  from  a  tract  of  land  of  which  the  premises  conveyed  consti- 
tuted but  a  small  part. 


Oct.  1887.]  Hodge  v.  Sloan.  817 

Action  by  Edward  Null  to  enjoin  the  defendants  from  sell- 
ing any  sand  from  a  tract  of  land  embracing  about  half  an 
acre.  In  1868  Null  was  the  owner  of  forty  acres  of  land  in 
Canajoharie,  and  was  engaged  in  the  business  of  selling  sand 
therefrom,  and  received  an  application  from  John  D.  Sloan, 
for  the  sale  of  the  half-acre  now  in  question.  Null  declined 
to  sell  on  the  ground  that  to  do  so  would  injure  his  business. 
To  meet  this  objection,  Sloan  agreed  not  to  sell  any  sand  off 
the  premises.  This  agreement  was  inserted  in  the  original 
contract  of  sale;  and,  when  after  full  payment  was  made,  and 
a  conveyance  executed,  it  contained  the  following  covenant: 
'*  Said  party  of  the  second  part  hereby  agreeing  not  to  sell  any 
sand  oflf  of  said  premises."  In  1881  Sloan  conveyed  to  his 
son  Richard,  the  defendant  in  the  present  action,  who,  not- 
withstanding his  knowledge  of  the  agreement  made  by  his 
father,  opened  a  pit  on  the  premises  and  began  selling  sand 
therefrom.  Null  continued  in  the  business  of  selling  sand, 
and  was  able  to  supply  all  demands  therefor.  He  brought 
this  action  to  enjoin  the  defendant  from  the  sale  of  sand  from 
the  premises  conveyed  as  before  set  forth.  During  the  pend- 
ency of  the  action  Null  died,  and  the  action  was  continued 
in  the  name  of  his  executor,  Hodge.  The  decisions  at  the 
special  and  general  terms  were  both  in  favor  of  the  defendant. 

D.  S.  Morrel,  for  the  appellants. 

H.  L.  Hvston,  for  the  respondent.  • 

By  Court,  Danforth,  J.  The  conclusion  of  the  trial  court 
is  against  our  ideas  of  natural  justice,  for  it  takes  from  one 
party  an  advantage  which  he  refused  to  sell,  and  secures  to 
the  other  without  price  a  privilege  which  his  grantor  was  un- 
able to  buy.  Nor  do  we  find  that  this  denial  of  private  right 
is  required  by  any  rule  of  public  policy.  Assuming  with  the 
respondent  that  the  covenant  is  in  restraint  of  trade,  it  is  still 
ralid  if  it  imposes  no  restriction  upon  one  party  which  is  not 
beneficial  to  the  other,  and  was  induced  by  a  consideration 
which  made  it  reasonable  for  the  parties  to  enter  into  it, — or  in 
other  words,  if  it  was  a  proper  and  useful  contract,  or  such  as 
could  not  be  disregarded  without  injury  to  a  fair  contractor. 
This  is  the  doctrine  of  Chappel  v.  Brockway,  21  Wend.  157, 
and  Ro88  v.  Sadgbeer,  21  Id.  166,  derived  by  a  learned  court 
from  the  leading  case  of  Mitchel  v.  Reynolds^  1  P.  Wms.  181, 
and  an  examination  of  subsequent  decisions.    It  iu  also  so  am- 

AV.  St.  Rsr..  Vou  L— M 


818  HoDGB  V,  Sloan.  [New  York, 

plified  and  discussed  in  a  case  just  decided  by  this  court, 
Diamond  Match  Co.  v.  Roeber,  106  N.  Y.  473,  60  Am.  Rep. 
464,  opinion  by  Andrews,  J.,  as  to  make  any  elaboration  of 
the  generel  rule  quite  superfluous. 

The  subject  of  the  contract  at  the  bottom  of  this  contro- 
versy was  a  piece  of  land  which  Sloan  wanted  to  buy  and 
which  the  plaintiff  was  willing  to  sell,  provided  it  should  not 
be  made  an  instrument  for  the  destruction  of  his  means  of 
livelihood,  or  detrimental  to  his  business.  The  principle  which 
favors  freedom  of  trade  requires  that  every  man  shall  be  at 
liberty  to  work  for  himself,  and  shall  not  deprive  himself  or 
the  state  of  the  benefit  of  his  industry  by  any  contract  that 
he  enters  into.  The  same  principle  must  justify  a  party  in 
withholding  from  market  the  tools,  or  instruments,  or  means  by 
which  he  gains  the  support  of  his  family;  or  if,  as  in  the  case 
before  us,  the  instrument  or  means  are  susceptible  of  several 
uses,  one  of  which  will  work  mischief  to  himself  by  the  loss  or 
impairment  of  his  livelihood,  there  is  no  reason  of  public  policy 
which  requires  him  upon  a  sale  of  the  instrument  to  consent 
to  that  use,  or  prohibits  him  from  binding  his  vendee  against  it. 

We  see  nothing  unreasonable  in  the  restriction  which  the 
grantee  imposed  upon  himself.  He  was  not  a  dealer  in  sand. 
He  wanted  to  buy  the  land  on  the  best  terms  and  in  the  most 
advantageous  way,  and  in  order  to  do  this  it  was  necessary 
that  he  should  preclude  himself  from  so  using  it  as  that  by  its 
means  he  should  enter  into  competition  with  the  vendor.  I 
cannot  find  that  such  a  covenant  contravenes  any  rule  of  pub- 
lic policy,  nor  that  it  is  incapable  of  being  enforced  in  a  court 
of  equity.  It  stands  upon  a  good  consideration,  and  is  not 
larger  than  is  necessary  for  the  protection  of  the  covenantee 
in  the  enjoyment  of  his  business. 

But  the  question  presented  is,  upon  the  conceded  facts,  really 
one  of  individual  right  with  which  the  question  of  public  policy 
has  little  if  anything  to  do. 

Parties  competent  to  contract  have  contracted,  the  one  to 
eell  a  portion  of  his  land,  but  only  upon  such  conditions  as 
will  protect  himself  in  the  prosecution  of  business  carried  on 
upon  the  residue,  the  other  agreeing  to  buy  for  a  consideration 
affected  by  that  condition,  and  enabled  to  do  so  only  by  ac- 
ceding to  it,  and  he  therefore  binds  himself  by  contract  to 
limit  the  use  of  the  land  purchased  in  a  particular  manner. 
There  seems  no  reason  why  he  and  his  grantee,  taking  title 
with  notice  of  the  restriction,  should  not  be  equally  bound. 


Oct.  1887.]  Hodge  v.  Sloan.  819 

The  contract  was  good  between  the  original  parties,  and  it 
should  in  equity,  at  least,  bind  whoever  takes  title  with  no- 
tice of  such  covenant.  By  reason  of  it  the  vendor  received 
less  for  his  land,  and  the  plain  and  expressed  intention  of  the 
parties  would  be  defeated  if  the  covenant  could  not  be  en- 
forced as  well  against  a  purchaser  with  notice,  as  against  the 
original  covenantor.  In  order  to  uphold  the  liability  of  the 
successor  in  title,  it  is  not  necessary  that  the  covenant  should 
be  one  technically  attaching  to  and  concerning  the  land,  and 
60  running  with  the  title.  It  is  enough  that  a  purchaser  has 
notice  of  it.  The  question  in  equity  being,  as  is  said  in  Tulk 
V.  Moxhay,  11  Beav.  571,  2  Phill.  Ch.  774,  not  whether  the 
covenant  ran  with  the  land,  but  whether  a  party  shall  be  per- 
mitted to  use  the  land  inconsistently  with  the  contract  entered 
into  by  his  vendor,  and  with  notice  of  which  ho  purchased. 
This  principle  was  applied  in  Tallmadge  v.  East  River  Bank^ 
26  N.  Y.  105,  where  the  equity  in  regard  to  the  manner  of 
improvement  and  occupation  of  certain  land  grew  out  of  a 
parol  contract  made  by  the  owner  with  the  purchaser,  and  was 
held  binding  upon  a  subsequent  purchaser  with  notice,  although 
his  legal  title  was  absolute  and  unrestricted. 

In  Trustees  v.  Lynch,  70  N.  Y.  440,  26  Am.  Rep.  615,  the 
action  was  brought  to  restrain  the  carrying  on  of  business  on 
certain  premises  in  the  city  of  New  York,  of  which  the  de- 
fendant was  owner,  upon  the  ground  that  the  premises  were 
subject  to  a  covenant,  reserving  the  property  exclusively  for 
dwelling-houses.  The  court  below  held,  among  other  things, 
that  the  covenant  did  not  run  with  the  land,  and  that  the  re- 
striction against  carrying  on  any  business  on  the  premises  was 
liable  to  conflict  with  the  public  welfare,  and  judgment  was 
given  for  the  defendant.  Upon  appeal  it  was  reversed,  the 
covenant  held  to  be  binding  upon  a  subsequent  grantee  with 
notice  as  well  upon  the  original  covenantor.  So  the  restraint 
may  be  against  the  use  of  the  premises  for  one  or  another  par- 
ticular purpose,  as  that  no  building  thereon  "  shall  be  used  for 
the  sale  of  ale,  beer,  spirits,"  etc.,  "  or  as  an  inn,  public  house, 
or  beer-house  ":  Carter  v.  Williams,  L.  R.  9  Eq.  Cas.  678.  And 
it  is  said  a  man  may  covenant  not  to  erect  a  mill  on  his  own 
lands:  Mitchel  v.  Reynolds,  supra. 

Many  other  instances  of  restraint  might  be  referred  to,  and 
where  it  is  of  such  nature  as  concerns  the  mode  of  occupying 
or  dealing  with  the  property  purchased  in  the  way  of  business 
operations,  or  even  the  omission  of  all  business  or  certain  kinds 


820  Hodge  v.  Sloan.  [New  York, 

of  business,  or  the  erection  or  non-erection  of  buildings  upon 
the  property,  we  see  no  reason  to  doubt  the  validity  of  an 
agreement  fair  and  valid  in  other  respects,  which  secures  that 
restraint.  Indeed,  it  seems  well  settled  by  authority  that  a 
personal  obligation  so  insisted  upon  by  a  grantor  and  assumed 
by  a  grantee,  which  is  a  restriction  as  to  the  use  of  the  land, 
may  be  enforced  in  equity  against  the  grantee  and  subsequent 
purchasers  with  notice:  Parker  v.  Nightingale,  6  Allen,  341, 
344;  83  Am.  Dec.  632;  Burbank  v.  Pillsbury,  48  N.  H.  475; 
nor  is  it  essential  that  the  assignees  of  the  covenantor  should 
be  named  or  referred  to:  Morland  v.  Cook,  L.  R.  6  Eq.  Cas. 
252.  In  Tulk  v.  Moxhay,  1  Hall  &  T.  105,  it  was  said  that  the 
jurisdiction  of  the  court  in  such  cases  is  not  fettered  by  the 
question  whether  the  covenant  does  or  does  not  run  with 
the  land.  In  that  case  the  purchaser  of  land,  which  was  con- 
veyed to  him  in  fee-simple,  covenanted  with  the  vendor  that 
the  land  should  be  used  and  kept  in  ornamental  repair  as  a 
pleasure  garden,  and  it  was  held  that  the  vendor  was  entitled 
to  an  injunction  against  the  assignee  of  the  purchaser  to  re- 
strain them  from  building  upon  the  land.  Upon  the  appeal, 
the  chancellor,  Cottenham,  said:  "I  have  no  doubt  whatever 
upon  the  subject;  in  short,  I  cannot  have'  a  doubt  upon  it, 
without  impeaching  what  I  have  considered  as  the  settled  rule 
of  this  court  ever  since  I  have  known  it.  Where  the  owner 
of  a  piece  of  land  enters  into  contract  with  his  neighbor, 
founded,  of  course,  upon  a  valuable  or  other  good  consider- 
ation, that  he  will  either  use  or  abstain  from  using  his  land  in 
such  a  manner  as  the  other  party  by  the  contract  particularly 
specifies,  it  appears  to  me  the  very  foundation  of  the  whole  of 
his  jurisdiction  to  maintain  that  this  court  has  authority  to 
enforce  such  a  contract.  It  has  never,  that  I  know  of,  been 
disputed."  The  question  before  the  court  was  stated  to  be 
whether  a  party  taking  property  with  a  stipulation  to  use  it  in 
a  particular  manner  will  be  permitted  by  the  court  to  use  it 
in  a  way  diametrically  opposite  to  that  which  the  party  has 
stipulated  for.  "Of  course,"  he  says, —  "of  course  the  party 
purchasing  the  property  which  is  under  such  restriction  gives 
less  for  it  than  he  would  have  given  if  he  had  bought  it 
unencumbered.  Can  there,  then,  be  anything  much  more 
inequitable  or  contrary  to  good  conscience  than  that  a  party 
who  takes  property  at  a  less  price  because  it  is  subject  to  a 
restriction  should  receive  the  full  value  from  a  third  party, 
and  that  such  third  party  should  then  hold  it  unfettered  by 


Oct.  1887. J  Hodge  v.  Sloan.  821 

the  restriction  under  which  it  was  granted?  That  would  be 
most  inequitable,  most  unjust,  and  most  unconscientious;  and, 
as  far  as  I  am  informed,  this  court  never  would  sanction  any 
such  course  of  proceeding."  And  in  language  very  applicable  to 
the  case  before  us  he  adds:  "Without  adverting  to  any  question 
about  a  covenant  running  with  land  or  not,  I  consider  that  this 
piece  of  land  is  purchased  subject  to  an  equity  created  by  a  party 
competent  to  create  it;  that  the  present  defendant  took  it  with 
distinct  knowledge  of  such  equity  existing;  and  that  such 
equity  ought  to  be  enforced  against  him,  as  it  would  have 
been  against  the  party  who  originally  took  the  land  from 
Mr.  Tulk."  This  case  is  cited  and  followed  as  to  restrictive 
covenants  in  many  cases:  Brown  v.  Great  East.  R'y  Co.,  L.  R. 
2  Q.  B.  D.  406;  London  etc.  R'y  Co.  v.  Gomm,  L.  R.  20  Ch. 
Div.  562,  576.  Each  case  will  depend  upon  its  own  circum- 
stances, and  the  jurisdiction  of  a  court  of  equity  may  be  ex- 
ercised for  their  enforcement  or  refused,  according  to  its 
discretion:  Trustees  v.  Thacher,  87  N.  Y.  311;  but  where  the 
agreement  is  a  just  and  honest  one,  its  judgment  should  not 
be  in  favor  of  the  wrong-doer.  Such  seems  to  us  the  character 
of  the  covenant  in  question;  it  is  restrictive,  not  collateral  to 
the  land,  but  relates  to  its  use,  and  upon  the  facts  found  the 
plaintiflF  is  entitled  to  the  equitable  relief  demanded. 

Brewer  v.  Marshall,  19  N.  J.  Eq.  537,  is  cited  by  the  respon- 
dent as  requiring  a  different  construction.  The  general  rules 
in  regard  to  such  covenants  are  not  stated  differently  in  that 
case.  But  in  the  opinion  of  the  court,  it  was  not  one  for  the 
interference  of  a  court  of  equity.  Among  many  other  cases, 
Tulk  V.  Moxhay,  supra,  is  cited,  and  the  learned  court  say:  "  It 
will  be  found,  upon  examination,  that  these  decisions  proceed 
upon  the  principle  of  preventing  a  party,  having  knowledge  of 
the  just  rights  of  another,  from  defeating  such  rights,  and  not 
upon  the  idea  that  the  engagements  enforced  create  easements, 
or  are  of  a  nature  to  run  with  the  land.  In  some  of  the 
instances  the  language  of  the  court  is  very  clear  on  this 
point";  and  from  a  "  review  of  the  authorities,"  the  court  say 
"  it  is  entirely  satisfied  that  a  court  of  equity  will  sometimes 
impose  the  burden  of  a  covenant,  relating  to  lands,  on  the 
alienee  of  such  lands,  on  a  principle  altogether  aside  from  the 
existence  of  an  easement,  or  the  capacity  of  such  covenant  to 
adhere  to  the  title."  The  only  question  which  the  court 
regarded  as  possessed  of  difficulty  was,  whether  the  covenant 
then  in  controversy  was  embraced  within  the  proper  limits  of 


822 


New  York  Rubber  Co.  v.  Rothery.    [New  York, 


this  branch  of  equitable  jurisdiction.  By  a  divided  court  an 
injunction  was  denied.  The  circumstances  were  quite  unlike 
those  before  us,  and  the  decision  furnishes  no  precedent  for  us 
to  follow. 

The  judgment  appealed  from  should  be  reversed,  and  new 
trial  granted,  with  costs  to  abide  the  event. 

All  concur  except  Peckham,  J,,  not  voting,  and  Andrews 
and  Earl,  JJ.,  dissenting,  because,  in  their  opinion,  the  cove- 
nant was  a  personal  one,  and  did  not  bind  the  grantee  of  the 
land. 

Judgment  reversed. 

Contracts  in  Restraint  op  Trade:  See  note  to  Angier  v.  Webber,  92  Am, 
Dec.  751-765;  SmaUey  v.  Oreen,  35  Am.  Rep.  267,  and  note  269-272;  DiO' 
mond  Match  Co.  v.  Roeber,  60  Id.  464;  Washburn  v.  Dosch,  60  Id.  873. 

Agreements  not  to  Use  Real  Property  for  certain  specified  purposes, 
entered  into  upon  sufficient  consideration,  may  be  enforced  in  equity,  by  and 
against  the  parties  and  their  successors  in  interest:  Trustees  v.  Lynch,  26  Am- 
Rep.  615,  where  the  owners  of  adjacent  lots  agreed  with  each  other  that  such 
lots  should  never  be  used  for  any  business  or  public  purpose  whatsoever;  At- 
lantic Dock  Co.  V.  Leavitt,  13  Id.  556,  where  a  deed  was  accepted  containing  a 
covenant  that  the  grantee,  his  heirs  and  assigns,  would  not  erect  any  distill- 
ery on  the  land  conveyed;  Dorr  v.  Harrahan,  3  Id.  398,  where  a  conveyance 
contained  a  restriction  that  none  but  a  dwelling-house  shall  be  erected  on  the 
premises;  see  also  Parker  v.  Nightingale,  83  Am.  Dec.  632,  and  note  to  Cros» 
T.  Carson,  44  Id.  751. 


New  York  Kubber  Co.  v,  Kothery. 

[107  New  Yoek,  810.1 

To  Create  Equttablb  EIstopfel,  the  person  sought  to  be  estopped  mnsft 
do  some  act  or  make  some  admission  to  influence  the  conduct  of  an< 
other,  which  act  or  admission  is  inconsistent  with  the  claim  he  proposes 
now  to  make;  and  the  other  party  must  have  acted  on  the  strength  of 
such  act  or  admission. 

Silence  does  not  Create  Estoppel,  unless  there  was  a  duty  to  speak. 

Estoppel.  —  Riparian  proprietor,  seeing  proprietors  on  the  opposite  side 
of  the  stream  building  a  mill-race  to  be  used  for  the  purpose  of  taking 
water  out  of  the  stream  to  supply  a  shop  or  factory,  and  not  to  be  re- 
turned to  the  stream  until  after  it  passes  his  land,  is  not,  by  his  failure 
to  object  to  such  mill-race  during  its  construction,  estopped  from  sub- 
sequently objecting  thereto,  and  maintaining  an  action  for  damages  oc- 
casioned thereby. 

Action  for  damages.  Plaintiff's  predecessor  in  interest,  Ruth 
J.  Smith,  and  the  defendants,  were  riparian  proprietors,  whose 
lands  were  situate  on  the  opposite  sides  of  a  stream.     De- 


Nov.  1887.]    New  York  Rubber  Co.  v.  Rothery.  823 

fendant  dug  on  his  land  a  mill-race,  to  supply  water  to  his 
factory.  It  diverted  water  from  the  stream,  which  was  not 
returned  thereto  until  after  it  passed  plaintiff's  land.  Verdict 
and  judgment  for  defendant. 

H.  B.  Turner,  B.  F.  and  W.  H.  L.  Lee,  for  the  appellant. 

H.  H.  Hustis,  for  the  respondents. 

By  Court,  Peckham,  J.  The  defendants  claim  two  answers 
were  made  to  the  plaintiff's  case,  each  of  which  was  fatal  to  a 
recovery  herein. 

One  answer  was,  that  the  use  made  by  the  defendants  of 
the  water  in  the  stream  was  not  unreasonable  or  illegal,  or  in 
any  way  inconsistent  with  the  rights  of  the  plaintiff.  Tho 
defendants  say  that  plaintiff's  lots  are  on  the  opposite  side  of 
the  stream  from  their  land,  and  that  no  machinery  can  be 
placed  on  the  lots  to  be  propelled  by  water,  as  plaintiff  has  no 
land  upon  which  to  erect  a  dam,  and  there  is  no  fall  in  the 
stream  between  the  bridge  and  defendants'  tail-race,  so  that 
the  only  use  the  plaintiff  could  have  for  the  water  in  the  stream 
is  for  domestic  purposes,  and  there  being,  as  they  claim,  always 
water  in  the  stream  by  the  plaintiff's  lots  for  such  purposes, 
its  rights  as  a  riparian  owner  have  not  been  injured. 

The  difficulty  with  this  statement  is,  that  there  is  evidence 
in  tho  case  which  tends  to  contradict  it,  and  which  tends  to 
show  that  the  use  made  by  the  defendants  of  the  water  in 
the  creek  was  such  that  at  various  times  the  quantity  which 
would  otherwise  have  flowed  past  plaintiff's  lots  was  per- 
ceptibly and  materially  diminished,  and  to  such  an  extent 
that  frequently  when  the  water  was  running  through  the  tail- 
race  of  defendants  there  was  none  running  over  or  through  the 
dam  except  leakage,  and  of  course  none  flowing  past  the  plain- 
tiff's lot,  the  whole  substantial  part  of  the  water  of  the  stream 
going  through  defendants'  tail-race,  instead  of  down  its  origi- 
nal and  natural  channel.  There  is  evidence  tending  to  show 
that  the  water  was  not  returned  to  the  stream  in  time  to  reach 
that  part  of  the  plaintiff's  lot  which  it  would  otherwise  natu- 
rally touch. 

We  do  not  assume  to  say  this  evidence  is  true.  But  it  raised 
an  issue  which  the  plaintiff  was  entitled  to  have  decided  by 
the  jury,  unless  there  was  some  other  defense  to  the  action. 
There  cannot  be  much  dispute  now  as  to  tho  general  rights  of 
riparian  owners,  or  that  if  the  defendants  did  use  the  water  to 
Buch  an  extent  as  some  of  the  evidence  tends  to  prove,  they 


824  New  York  Rubber  Co.  v.  Rothery.     [New  York, 

used  it  in  a  manner  that  they  had  no  legal  right  to  do. 
Whether  they  did  or  not,  we  do  not  know.  The  other  an- 
Bwer  which  the  defendants  make  is  that  of  an  equitable  estop- 
pel. 

It  may  be  assumed  that  at  the  time  when  the  defendants 
built  their  mill-race,  and  erected  expensive  buildings  for 
manufacturing  purposes,  Ruth  J.  Smith  was  the  owner  of  the 
lots  in  question,  and  which  are  now  owned  by  the  plaintiff. 

The  estoppel  is  based  upon  the  following  facts:  The  defend- 
ants built  the  mill-race  upon  their  own  lands,  and  erected 
their  factory  also  upon  their  own  lands,  which  factory  was  to 
be  supplied  with  water  from  the  stream  carried  through  this 
mill-race.  While  Ruth  J.  Smith  was  thus  the  owner  of  the 
lots,  and  while  the  defendants  were  building  this  mill-race  on 
their  own  lands,  she  saw  defendants  and  their  men  at  work  on 
it  and  on  the  factory,  and  she  understood  the  race  was  being 
built  to  take  water  from  the  stream  to  the  shop;  and  during 
all  the  time  it  was  in  course  of  construction  she  never  objected 
to  it  in  any  way,  or  authorized  any  one  to  object  to  it  for  her, 
nor  did  she  at  the  time  object  to  the  defendants  carrying  the 
water  down  the  race. 

These  are  all  the  facts  upon  which  an  estoppel  is  claimed, 
and  upon  which  the  learned  courts  below  decided  that  an 
estoppel  existed.  They  are  not  sufficient  to  authorize  the  pre- 
sumption of  a  grant,  or  even  a  license:  Haight  v.  Price,  21  N.  Y. 
241;  and  defendants  must  rest  their  defense  upon  an  estoppel 
pure  and  simple.  It  will  be  seen  there  is  no  element  of  fraud 
in  the  case,  nor  any  evidence  that  Mrs.  Smith  led  the  defend- 
ants into  making  this  outlay  on  any  assumption  that  they  had 
the  right  to  do  it,  when  in  truth  they  had  not,  and  she  knew 
it,  and  yet  induced  them  to  go  on  and  expend  their  moneys 
upon  such  erroneous  assumption.  Nothing  of  the  sort  is  pre- 
tended. The  simple  case  is  presented  of  an  owner  of  land 
standing  by  and  seeing  an  owner  of  adjoining  land  make  such 
use  of  his  own  land  as  he  had  a  right  to,  without  informing 
him  that  if  he  proceeded  thereafter  to  do  an  illegal  act  it 
would  not  be  permitted.  The  defendants  had  a  right  to  ex- 
cavate on  their  own  land,  and  to  build  such  a  factory  as  they 
chose,  but  even  if  they  had  no  right  to  dig  the  mill-race,  and 
let  the  water  in  it,  and  thus,  possibly,  divert  the  water  from 
the  stream,  the  owner  of  the  adjoining  land  (Mrs.  Smith)  was 
not  bound  to  interfere  or  protest.  She  had  the  legal  right  to 
acquiesce  in  the  action  of  the  defendants,  so  far  as  to  refrain 


Nov.  1887.]     New  York  Rubber  Co.  v.  Rothery.  825 

from  interference,  and  her  simple  knowledge  that  defendants 
were  thus  engaged  did  not  require  her  to  object,  under  penalty 
of  the  loss  of  her  legal  rights.  The  cases  referred  to  by  coun- 
sel for  respondents  to  sustain  the  estoppel  in  this  instance  do 
not  go  to  any  such  length,  and  I  have  been  unable  to  myself 
find  any  that  do. 

The  counsel  referred  to  Town  v.  Needham^  3  Paige,  545;  24 
Am.  Dec.  246;  Thompson  v.  Blanchard,  4  N.  Y.  303;  Brown  v. 
Bowen,  30  Id.  519;  86  Am.  Dec.  406;  Coming  v.  Troy  Iron  and 
Nail  Factory,  40  N.  Y.  191.  The  first  case,  that  of  Town  v. 
Needham,  supra,  simply  enforced  the  well-settled  rule  of  equity, 
that  where  the  owner  of  real  estate  sufiers  another  to  purchase 
the  estate  from  a  third  person,  and  to  erect  buildings  thereon, 
under  the  erroneous  belief  that  he  has  a  good  title,  and  such 
owner  permits  the  purchaser  to  conclude  his  purchase,  and 
intentionally  conceals  from  him  his  title  to  the  property,  the 
owner  will  not  afterwards  be  permitted  to  enforce  his  title 
against  such  purchaser.  In  Thompson  v.  Blanchard,  supra,  the 
same  doctrine  is  held  applicable  to  personal  property.  Brown 
V.  Bowen,  supra,  holds  the  same  principle,  the  same  element 
of  concealment  on  one  side  and  mistake  of  fact  on  the  other 
being  present.  To  the  same  eflfect  is  Trenton  Banking  Com- 
pany  v.  Duncan,  86  N.  Y.  221.  The  English  rule  is  substan- 
tially the  same:  Ramsden  v.  Dyson,  L.  R.  1  H.  L.  Cas.  129. 
Coming  v.  Troy  Iron  and  Nail  Factory,  supra,  is  really  an  au- 
thority for  the  position  taken  by  the  plaintiff  here,  that  no 
estoppel  can  be  predicated  upon  the  facts  in  this  case. 

There  is  no  pretense  that  the  defendants  did  not  know  their 
title  and  their  rights  quite  as  well  as  Mrs.  Smith,  and  none 
that  she  in  any  way  induced  them  to  make  this  expenditure. 
She  was  simply  passive  in  the  matter,  and  failed  to  object  to 
the  defendant's  doing  what  they  did  do.  In  this  there  was  no 
element  of  an  estoppel.  To  constitute  it,  the  person  sought  to 
be  estopped  must  do  some  act  or  make  some  admission  with 
an  intention  of  influencing  the  conduct  of  another,  or  that  he 
had  reason  to  believe  would  influence  his  conduct,  and  which 
act  or  admission  is  inconsistent  with  the  claim  ho  proposes 
now  to  make.  The  other  party,  too,  must  have  acted  upon  the 
strength  of  such  admission  or  conduct:  See  Brown  v.  Bowen, 
supra,  at  page  641.  In  cases  of  silence,  there  must  be  not 
only  the  right  but  the  duty  to  speak  before  a  failure  so  to  do 
can  estop  the  owner.  There  was  no  such  duty  here:  See  VieU 
V  Judson,  82  N.  Y.  32. 


826  McPherson  v.  Rollins.  [New  York, 

The  judgment  of  the  general  term  and  of  the  circuit  should 
be  reversed,  and  a  new  trial  granted,  costs  to  abide  event. 
Judgment  reversed. 

Estoppel.  —  One  who,  having  knowledge  of  his  rights,  encourages  another 
to  buy,  or  to  settle  upon  and  improve,  land  is  estopped  thereby  from  claim- 
ing title  for  himself:  Miller  v.  Miller,  100  Am.  Dec.  538;  Tongue's  Leasee  v. 
Nutwell,  79  Id.  649;  Workman  v.  Ouihrie,  72  Id.  654;  Saunderson  v.  BaUance, 
72  Id.  218;  Ouffey  v.  O'Reilley,  57  Am.  Rep.  424,  and  note  429-433.  So  it  haa 
been  held  that  one  who  permitted  a  quasi  public  improvement,  as  a  railway, 
to  be  constructed  on  his  land,  without  objection,  is  estopped  from  denying 
the  right  to  use  the  land  for  railroad  purposes,  though  not  precluded  from 
collecting  compensation:  Ooodinv.  O.  Je  W.  C.  Co.,  98  Am.  Dec.  95,  and  note; 
Anderson  v.  HiMU,  47  Am.  Rep.  394,  and  note. 


McPheeson  V.  Rollins. 

[107  New  Yoek,  816.] 

PcBCHASEBS  OF  Laitd  MUST  BE  Deemed  TO  HAVE  EzAHiNBD  OTcry  deed  and 
instrument  on  record  affecting  their  title,  and  to  have  notice  of  every 
fact  disclosed  by  the  record,  and  every  other  fact  which  an  inquiry  sug« 
gested  by  these  records  would  have  led  up  to. 

Release  by  Mortqaqeb  of  Mortgage  Which  He  Holds  in  Trust  for 
Another,  before  it  becomes  due,  is  in  contravention  of  his  trust,  and 
constitutes  no  obstacle  to  enforcing  such  mortgage  against  subsequent 
homo,  fide  purchasers.  They  are  bound  to  know  that  he  had  no  authority 
to  grant  such  release. 

FoBECLOSURE.  Defense  as  to  the  defendant  Rollins  that 
the  mortgage  had  been  discharged  of  record  before  they  pur- 
chased, and  that  they  were  innocent  purchasers  for  value. 
The  mortgage  was  executed  by  Fannie  Gray  to  Andres  Dom- 
ing, and  it  recited  that  it  was  "  intended  as  a  security  for  the 
payment  of  $250  annually  to  said  Deming  for  and  during 
his  natural  life,  on  or  before  the  fifteenth  day  of  May,  in 
each  year  thereof,  reckoning  from  the  date  of  this  mort- 
gage; and  for  the  further  payment  of  the  further  sum  of  $50 
annually  to  said  Deming,  or  the  general  guardian  of  Florence 
McPherson,  on  or  before  the  fifteenth  day  of  May  in  each 
year  hereafter,  for  the  benefit  of  said  Florence,  until  the  said 
Florence  shall  arrive  at  the  age  of  fifteen  years,  and  the  further 
sum  annually  to  said  Deming  or  guardian  of  $100,  payable 
on  or  before  the  fifteenth  day  of  May  in  each  year,  until  the 
said  Florence  shall  arrive  at  the  age  of  twenty-one  years,  for 
the  benefit  of  said  Florence;  and  for  the  further  payment 
of  the  further  sum  of  $50  annually  to  the  said  Deming  or 


Nov.  1887.]  McPherson  v.  Rollins.  827 

the  general  guardian  of  Ida  McPherson,  on  or  before  the 
fifteenth  day  of  May  in  each  year  hereafter,  for  the  benefit  of 
said  Ida,  until  the  said  Ida  shall  arrive  at  the  age  of  fifteen 
years;  and  thereafter  the  further  sum  annually  to  said  Dem- 
ing  or  guardian  of  $100,  payable  on  the  fifteenth  day  of  May 
in  each  year,  until  the  said  Ida  shall  arrive  at  the  age  of 
twenty-one  years,  for  the  benefit  of  said  Ida;  said  Florence 
and  Ida  being  the  granddaughters  of  the  said  Deming,  the 
said  Florence  being  fourteen  years  of  age  April  1,  1873,  and 
the  said  Ida  eleven  years  of  age  October  10,  1872."  The 
mortgage  was  properly  executed  and  recorded.  Several 
months  thereafter,  the  mortgagor  requested  Deming,  the 
mortgagee,  to  enter  satisfaction  of  the  mortgage  of  record, 
and  he  complied  with  the  request,  without  in  fact  receiving 
anything  in  payment.  The  mortgaged  premises  were  after- 
wards sold  and  conveyed  to  the  defendants,  who  were  pur- 
chasers in  good  faith,  and  for  value,  and  without  any  actual 
notice  of  the  mortgage,  or  of  the  manner  in  which  its  satis- 
faction of  record  had  been  procured.  Judgment  for  plaintifif 
on  the  report  of  a  referee  was  aflBrmed  by  the  general  term, 
from  which  the  defendant  appealed. 

E.  A.  Nashf  for  the  appellant. 

A.  J.  Abbott^  for  the  respondent. 

By  Court,  Danforth,  J.  That  a  valid  trust  was  created  by 
the  terms  of  the  mortgage,  and  to  the  effect  as  found  by  the 
referee,  and  that  it  continued  to  exist,  there  can  be  no  doubt. 
The  transfer  of  property  was  executed,  and  the  relation  of 
trustee  and  cestui  que  trust  formed,  and  at  no  time  renounced. 
This  question  must  be  deemed  closed  in  this  court  by  its  de- 
cision in  Martin  v.  Funk,  75  N.  Y.  134;  31  Am.  Rep.  446.  The 
important  inquiry  before  the  referee  was,  whether  the  defend- 
ants had  any  notice,  actual  or  constructive,  of  the  plaintiff's 
rights,  or  of  the  character  in  which  Deming  held  the  mortgage. 
His  finding  that  they  had  no  actual  notice  reduces  our  inquiry 
to  the  effect  of  the  recording  act.  As  intending  purchasers, 
they  must  be  presumed  to  investigate  the  title,  and  to  examine 
every  deed  or  instrument  forming  a  part  of  it,  especially  if  re- 
corded. They  must  therefore  be  deemed  to  have  known  every 
fact  BO  disclosed:  Acer  v.  Westcott,  46  N.  Y.  384;  7  Am.  Rep. 
355;  and  every  other  fact  which  an  inquiry,  suggested  by  those 
records,  would  have  led  up  to.  Thus  they  are  plainly  charge- 
able with  notice  of  the  mortgage,  and  of  all  the  facts  of  which 


828  McPherson  t?.  Rollins.  [New  York, 

the  mortgage  could  inform  them.  They  knew,  therefore,  that 
the  legal  interest  was  in  Deming,  and  that,  to  eome  extent,  he 
was  the  owner  of  a  beneficial  interest.  As  to  that,  they  might 
rely  upon  his  acts.  How  was  it  as  to  the  plaintifiF?  The 
mortgage  declared  that  it  was  intended  as  security  for  the 
payment  of  $250  annually  to  Deming,  individually,  and  $50 
annually  to  "  Deming,  or  to  the  general  guardian  of  Florence 
McPherson  [the  plaintifiF],  on  or  before  the  fifteenth  day  of 
May  in  each  year  hereafter,  for  the  benefit  of  said  Florence, 
until  the  said  Florence  shall  arrive  at  the  age  of  fifteen  years, 
and  thereafter,  the  further  sum  annually  to  said  Deming  or 
guardian  of  $100,  payable  on  or  before  the  fifteenth  day  of 
May  in  each  year,  until  the  said  Florence  shall  arrive  at  the 
age  of  twenty-one  years,  for  the  benefit  of  said  Florence  ";  and 
recited,  also,  that  she  was  fourteen  years  of  age  on  the  Ist  of 
April,  1873,  being  the  same  year  in  which  the  mortgage  was 
executed.  There  was  notice,  therefore,  that  the  plaintiff  had 
a  beneficial  interest  under  the  mortgage,  which,  by  its  terms, 
would  continue  until  1880,  the  time  of  her  majority,  and  in 
like  manner,  although  to  a  dififerent  period,  as  to  the  rights  of 
Ida.  It  is  true  that  at  the  same  time  the  purchasers  found  of 
record  a  certificate,  signed  by  Deming,  dated  February  6, 1874, 
referring  in  terms  to  this  mortgage,  and  declaring  that  it  "  is 
redeemed,  paid  oflf,  satisfied,  and  discharged." 

But  this  was  an  act  not  in  the  execution  of  his  trust  nor  war- 
ranted by  it,  and  the  referee  properly  held  that,  as  against  the 
plaintifif,  it  was  of  no  efiect.  As  to  this,  also,  the  purchasers 
must  be  presumed  to  have  known  the  law.  The  case  of  Field 
V.  Schieffelin,  7  Johns.  Ch.  150,  11  Am.  Dec.  441,  and  other 
similar  cases  cited  by  the  appellants,  apply  only  where  a  trus- 
tee or  guardian  has  a  power  of  disposition  of  the  estate,  and 
may  exercise  it  in  his  discretion.  This  power  Deming  did  not 
possess.  The  discharge  was  in  contravention  of  the  trust,  and 
therefore  in  fraud  of  the  beneficiaries  for  whom  the  trust  was 
created.  By  its  very  terms  the  mortgage  was  to  be  a  security, 
not  only  for  the  payment  of  the  money,  but  to  remain  such 
security  for  the  payment  of  money  at  specific  times  during  the 
plaintiff's  minority.  The  defendants  knew  this,  and  knew  also 
that  the  time  when  the  trustee  was  authorized  to  receive  pay- 
ment had  not  arrived.  His  power  was  limited  by  the  terms 
of  the  mortgage,  and  his  apparent  authority  was  his  real  au- 
thority. He  had  no  power  to  vary  its  terms  nor  receive  pay- 
ment in  anticipation  of  the  times  fixed  by  the  mortgage.    His 


Nov.  1887.]  Manchester  v.  Braedner.  829 

declaration  or  certificate  that  he  had  been  paid  was,  therefore, 
of  no  avail  against  the  express  provisions  of  the  instrument  by 
which  his  power  was  defined.  In  case  of  default  on  the  part 
of  the  mortgagor  in  paying,  the  mortgagee  might,  as  the  ap- 
pellants say,  foreclose,  for  power  to  do  so  is  expressly  given  by 
the  mortgage,  but  whether  the  security  for  future  payments 
would  then  be  found  in  the  decree  or  otherwise  would  depend 
on  circumstances  not  pertinent  to  the  present  inquiry.  A 
point  is  made  that  the  plaintiff  is  not  the  owner  of  a  mort- 
gage, and  cannot  maintain  the  action.  Such  question  was  not 
raised  by  the  pleadings,  nor  does  it  appear  to  have  been  pre- 
sented upon  the  trial,  but  the  averments  of  the  complaint 
show  that  the  plaintiff  is  a  real  beneficiary.  The  form  of  the 
action  is  not  objected  to,  and  the  judgment  goes  no  further 
than  to  give  the  relief  to  which,  as  a  beneficiary,  she  is  en- 
titled. 

It  should  therefore  be  aflBrmed. 

Judgment  aflBrmed. 

Nones  VBOM  Recitals  in  Tttlb  Papers.  — It  is  well  settled  that  a  pur- 
chaser is  conclusively  presumed  to  have  notice  of  every  fact  which  is  disclosed 
by  the  records  constituting  the  chain  of  title  under  which  he  holds:  See  note 
to  Lodge  v.  Sinumton,  23  Am.  Dec.  48-51,  in  which  note  the  general  subjects 
of  notice  and  of  circumstances  sufficient  to  put  a  purchaser  upon  inquiry  are 
discussed.  The  subject  of  constructive  notice  is  also  treated  in  the  note  to 
Parker  v.  Cornier,  45  Am.  Rep.  184-190. 

RblKASB  OB  C0MVE7ANCE  BT  TbUSTEE  IN  CONTBAVENTION  OF  HIS  TbUST 

is  void  by  the  statutes  of  New  York.  Similar  provisions  have  been  incorpo- 
rated in  the  statutes  of  other  states.  Under  these  statutes,  reconveyances 
by  the  trustee  to  his  grantor  before  the  objects  of  the  trust  have  been 
accomplished  are  invalid:  Brigga  v.  Davis,  75  Am.  Dec.  363,  and  note. 
Whenever  the  objects  of  the  trust  are  expressed  in  the  instrument  creating 
it,  every  conveyance  made  by  the  trustee,  in  contravention  of  the  trust,  is 
ine£fective,  and  leaves  him  vested  with  the  legal  title  as  before  the  execution 
sf  such  conveyance:  Note  to  OaU  v.  Mensing,  64  Id.  202,  203. 


Manchester  v.  Braedner. 

[107  New  TOKK.  S46.1 

PRistTiipnoir  ntOM  Dklivebt  to  Akothkr  or  Ordek  on  Third  Pkrson  for 
the  payment  of  money  to  the  person  to  whom  the  order  is  given,  is,  that 
the  drawee  is  indebted  to  the  drawer  in  the  sum  mentioned  in  the  order. 

AOKNOWLKDOUBNT    IH   WRITING    SuiTICnNT  TO  TaKB  CaSB    OUT  Or    StAT- 

tTTB  Of  Limitations  may  consist  of  an  order  drawn  by  the  debtor  in 
favor  of  the  creditor,  and  requesting  a  third  person  to  pay  the  latter  a 
•am  named  in  such  order. 


830  Manchester  v.  Bbaedner.  [New  York, 

Obal  Evidence  i3  Admissible  to  Identift  Debt  to  Which  Acknowl- 
edgment, relied  upon  to  take  a  demand  oat  of  the  statute  of-Umitations, 
relates. 

WRiTiNa,  to  Constitute  Acknowledgment  Sctficient  to  Take  Debt 
out  of  Statute  or  Limitations,  must  recognize  the  debt  as  existing, 
and  contain  nothing  inconsistent  with  an  intention  on  the  part  of  the 
debtor  to  pay  it. 

Action  commenced  June  20,  1882,  to  recover  for  building 
material.  Defense,  the  statute  of  limitations.  To  avoid  this 
defense,  the  plaintiff  proved  that  on  June  21, 1876,  the  defend- 
ant gave  him  three  orders  on  one  Hoover,  requesting  him  to 
pay  plaintiff  sums  which  in  the  aggregate  equaled  the  amount 
of  plaintiff's  claim.  Before  any  sum  could  become  due  from 
Hoover  to  be  paid  on  such  order,  it  was  necessary  for  defend- 
ant to  complete  a  certain  job  of  work.  This  the  defendant 
failed  to  do,  and  consequently  Hoover  never  paid  the  order 
drawn  on  him,  and  the  plaintiflPs  debt  remained  unsatisfied. 
Judgment  in  favor  of  plaintiff  was  af&rmed  by  the  general 
term. 

P.  L.  Wilson,  for  the  appellant. 

Charles  De  Kay  Townsend,  for  the  respondent. 

By  Court,  Andrews,  J.  When  one  delivers  to  another  an 
order  on  a  third  person  to  pay  a  specified  sum  of  money  to 
the  person  to  whom  the  order  is  given,  the  natural  impart  of 
the  transaction  is,  that  the  drawee  is  indebted  to  the  drawer 
in  the  sum  mentioned  in  the  order,  and  that  it  was  given  to 
the  payee  as  a  means  of  paying  or  securing  the  payment  of 
his  debt.  In  other  words,  it  implies  the  relation  of  debtor 
and  creditor  between  the  parties  to  the  extent  of  the  sum 
specified  in  the  order,  and  a  willingness  on  the  part  of  the 
debtor  to  pay  the  debt.  The  transaction  may  be  consistent 
with  a  different  relation  and  another  purpose,  but  in  the  ab- 
sence of  explanation,  that  is  its  natural  and  ordinary  mean- 
ing: See  Bogert  v.  Morse,  1  N.  Y.  377. 

The  oral  evidence  shows  that  the  defendant  was  owing  the 
plaintiffs  the  amount  specified  in  the  several  orders  of  June 
21,  1876,  and  that  they  were  given  to  secure  the  payment  of 
the  debt,  thus  fully  corroborating  the  inferences  deducible 
from  the  orders  themselves.  We  think  the  orders  constituted 
an  acknowledgment  in  writing  of  the  debt,  within  section  110  of 
the  code,  and  continued  the  debt  for  the  period  of  six  years  from 
their  date.  The  decisions  is  as  to  what  is  a  sufficient  acknowl- 
edgment of  a  debt,  to  take  it  out  of  the  statute,  are  very  nu- 


Nov.  1887.]  Callanan  v.  Oilman.  831 

merous,  and  not  altogether  harmonious.  It  seems  to  be  the 
general  doctrine  that  the  writing,  in  order  to  constitute  an 
acknowledgment,  must  recognize  an  existing  debt,  and  that  it 
should  contain  nothing  inconsistent  with  an  intention  on  the 
part  of  the  debtor  to  pay  it.  But  oral  evidence  may  be  resorted 
to,  as  in  other  cases  of  written  instruments,  in  aid  of  the  inter- 
pretation. Consistently  with  this  rule,  it  has  been  held  that 
oral  evidence  is  admissible  to  identify  the  debt  and  its  amount, 
or  to  fix  the  date  of  the  writing  relied  upon  as  an  acknowl- 
edgment, when  these  circumstances  are  omitted:  Kincaid  v. 
Archibald,  73  N.  Y.  189;  Lechmere  v.  Fletcher,  3  Tyrw.  450; 
Bird  V.  Oammon,  3  Bing.  N.  C.  883;  or  to  explain  ambiguities: 
1  Smith's  Lead.  Cas.  960,  and  cases  cited.  The  promise  to  be 
inferred  from  the  order  was  not  conditional  in  the  sense  that 
the  debt  was  to  be  paid  only  out  of  the  fund  in  the  hands  of 
the  drawee.  At  most,  there  was  an  appropriation  of  that  fund 
for  the  payment  of  the  debt,  but  the  language  of  the  orders 
did  not  import  that  the  debt  was  to  be  paid  only  out  of  the 
fund  against  which  they  were  drawn:  See  Winchell  v.  HickSy 
18  N.  Y.  558;  Smith  v.  Ryan,  66  Id.  352;  23  Am.  Rep.  60.  The 
defendant  by  his  own  act  in  abandoning  the  contract  with 
Hoover,  the  drawee,  prevented  the  payment  of  the  orders,  and 
left  him  subject  to  the  general  obligation  of  payment  resting 
upon  all  debtors. 

The  judgment  should  be  affirmed. 

Judgment  affirmed. 


AcKKOWLEDOMENT  ov  Debt  StTTFiciEKT  to  take  it  out  of  the  statute  of 
limitations:  Frey  v.  Kii-k,  23  Am.  Dec.  581,  and  note;  McCormick  v.  Brown, 
95  Id.  170;  Harlan  v.  Bemie,  76  Id.  428;  Landia  v.  Roth,  58  Am.  Rep.  747, 
and  note  749-751;  Stewart  v.  Oarrett,  57  Id.  333,  and  note  334-336;  Norton  y. 
Shepard,  40  Id.  157,  and  note  160-162. 


Callanan  v.  Oilman. 

.  [107  Nkw  Yobk,  880.J 
Obstrdction  to  Streets  13  Ordinarilt  Nuisance,  if  it  interferes  with 
their  use  by  the  public  for  travel  and  transportation.  Abutting  owner 
to  street  may  temporarily  encroach  thereon  by  the  deposit  of  building 
materials,  if  engaged  in  building.  A  tradesman  may  convey  goods  in  the 
street  to  or  from  his  adjoining  store.  A  coach  or  omnibus  may  stop  in 
the  street  to  take  up  or  set  down  passengers;  and  the  tise  of  the  street 
for  public  travel  may  be  interfered  with  in  a  variety  of  other  ways  with« 
oat  creating  a  nuisance. 


832  Callanan  v.  Gilman.  [New  York, 

Obstbuction  op  Stbeits  can  only  bs  JusTiyiED  BY  Necessity,  and  even 
then  it  mast  be  reasonable,  with  reference  to  the  rights  of  the  public, 
who  have  interests  in  the  streets  which  may  not  be  sacrificed  or  disre- 
garded. 

Whbtheb  Obstbuction  in  Stbeet  is  Necessaby  and  Reasonable  is  gen- 
erally  a  question  of  fact. 

Appbopbiation  of  Stbeet  to  Peivate  Use  by  one  doing  business  thereon 
will  not  be  permitted.  The  maintenance  of  a  bridge  across  a  sidewalk 
for  hours  during  each  business  day,  over  which  goods  are  conveyed  to 
and  from  a  store,  ia  a  public  nuisance. 

To  Recover  for  Public  Nuisance,  plaintiff  must  allege  and  prove  that  he 
has  sustained  special  damage,  different  from  that  sustained  by  the  gen- 
eral public.  Such  special  damage  is  sufficiently  shown  when  it  appears 
that  the  plaintiff  has  a  store  adjacent  to  the  alleged  nuisance,  and  that 
the  nuisance  prevents  plaintiff,  his  employees  and  patrons,  from  reach* 
ing  such  store  by  passing  along  the  sidewalk  in  front  thereof. 

Obstruction  of  Sidewalk  cannot  be  Justified  by  showing  that  defend* 
ant  allowed  pedestrians  to  pass  around  or  through  his  store,  or  over  his 
elevated  stoop,  between  moving  barrels  and  packages. 

Findings  on  Immaterial  Issues  need  not  be  Made. 

Failure  to  Find  on  Material  Issues  is  no  cause  for  reversal,  when,  front 
the  undisputed  evidence,  the  finding  must  have  been  against  the  appel* 
lant. 

Judgment  ENjonoNQ  Obstruction  of  Sidewalk  should  not  prevent  the 
defendant  from  making  any  use  whatever  of  such  obstruction,  but 
should  be  limited  to  restraining  him  from  "unnecessarily  or  unreason- 
ably obstructing  such  sidewalk,  or  from  unnecessarily  or  unreasonably 
hindering  or  preventing  plaintiff,  or  his  employees,  servants,  and  cus- 
tomers, from  having  the  convenient  use  of  and  passage  along  the  side* 
walk." 

Action  to  enjoin  the  obstruction  of  a  sidewalk.  Judgment 
ill  favor  of  plaintiffs  was  aflSrmed  by  the  general  term. 

Henry  Schmitt,  for  the  appellant. 

John  E.  Parsons  and  Edwin  M.  Wright,  for  the  respondents. 

By  Court,  Eael,  J.  The  primary  purpose  of  streets  is  use 
by  the  public  for  travel  and  transportation,  and  the  general 
rule  is,  that  any  obstruction  of  a  street  or  encroachment 
thereon  which  interferes  with  such  use  is  a  public  nuisance. 
But  there  are  exceptions  to  the  general  rule,  born  of  necessity 
and  justified  by  public  convenience.  An  abutting  owner  en- 
gaged in  building  may  temporarily  encroach  upon  the  street 
by  the  deposit  of  building  materials.  A  tradesman  may  con- 
vey goods  in  the  street  to  or  from  his  adjoining  store.  A 
coach  or  omnibus  may  stop  in  the  street  to  take  up  or  set  down 
passengers;  and  the  use  of  a  street  for  public  travel  may  be 
temporarily  interfered  with  in  a  variety  of  other  ways  without 
the  creation  of  what  in  the  law  is  deemed  to  be  a  nuisance. 


Nov.  1887.]  Callanan  v.  Gilman.  833 

But  all  such  interruptions  and  obstructions  of 'streets  must  be 
justified  by  necessity.  It  is  not  suflScient,  however,  that  the 
obstructions  are  necessary  with  reference  to  the  business  of  him 
who  erects  and  maintains  them.  They  must  also  be  reasonable 
with  reference  to  the  rights  of  the  public  who  have  interests 
in  the  streets  which  may  not  be  sacrificed  or  disregarded. 
Whether  an  obstruction  in  the  street  is  necessary  and  reason- 
able must  generally  be  a  question  of  fact  to  be  determined 
upon  the  evidence  relating  thereto.  A  reference  to  a  few  cases 
will  show  what  courts  have  said  upon  this  subject. 

In  Rex  v.  Russell,  6  East,  427,  where  the  defendant,  a 
wagoner,  was  indicted  for  occupying  one  side  of  a  public  street 
before  his  warehouse  for  loading  and  unloading  his  wagons, 
the  court  said  "  that  it  should  be  fully  understood  that  the 
defendant  could  not  legally  carry  on  any  part  of  his  business 
in  the  public  street  to  the  annoyance  of  the  public;  that  the 
primary  object  of  the  street  was  for  the  free  passage  of  the 
public,  and  anything  which  impeded  that  free  passage  without 
necessity  was  a  nuisance;  that  if  the  nature  of  the  defendant's 
business  were  such  as  to  require  the  loading  and  unloading  of 
many  more  of  his  wagons  than  could  conveniently  be  con- 
tained within  his  own  private  premises,  he  must  either  enlarge 
his  premises,  or  remove  his  business  to  some  more  convenient 
spot."  In  Rex  v.  Cross,  3  Camp.  224,  the  defendant  was  in- 
dicted for  allowing  his  coaches  to  remain  an  unreasonable 
time  in  a  public  street,  and  the  court  said:  "Every  unauthor- 
ized obstruction  of  a  highway  to  the  annoyance  of  the  king's 
subjects  is  a  nuisance.     The  king's  highway  is  not  to  be  used 

as  a  stable-yard A  stage-coach  may  set  down  or  take 

up  passengers  in  the  street,  this  being  necessary  for  public 
convenience;  but  it  must  be  done  in  a  reasonable  time,  and 
private  premises  must  be  provided  for  the  coach  to  stand 
while  waiting  between  one  journey  and  the  commencement  of 
another."  In  Rex  v.  Jones,  3  Id.  230,  the  defendant,  a  lumber 
merchant  in  London,  was  indicted  for  the  obstruction  of  a  part 
of  a  street  in  the  hewing  and  sawing  of  logs,  and  the  court 
said:  "  If  an  unreasonable  time  is  occupied  in  delivering  beer 
from  a  brewer's  dray  into  the  cellar  of  a  publican,  this  is  cer- 
tainly a  nuisance.  A  cart  or  wagon  may  bo  unloaded  at  a 
gateway,  but  this  must  be  done  with  promptness.  So  as  to 
the  repairing  of  a  house,  the  public  must  submit  to  the  incon- 
venience occasioned  necessarily  in  repairing  the  house;  but 
If  this  inconvenience  should  be  prolonged  for  an  unreasonable 

Aji.  St.  BiF.,  Vol.  1.-63 


834  Callanan  v.  Oilman.  [New  York, 

time,  the  public  have  a  right  to  complain,  and  the  party  may 
be  indicted  for  a  nuisance.  The  rule  of  law  upon  this  subject 
is  much  neglected,  and  great  advantages  would  arise  from 
a  strict,  steady  application  of  it.  I  cannot  bring  myself  to 
doubt  the  guilt  of  this  defendant.  He  is  not  to  eke  out  the 
inconvenience  of  his  own  premises  by  taking  in  the  public 
highway  with  his  lumber-yard;  and  if  the  street  be  too  narrow 
he  must  move  to  a  more  convenient  place  for  carrying  on  his 
business."  In  Commonwealth  v.  Passmore,  1  Serg.  &  R.  217, 
the  defendant,  an  auctioneer,  was  indicted  for  a  nuisance  in 
placing  goods  on  the  foot-way  and  carriage-way  of  one  of  the 
public  streets  of  the  city,  and  suffering  them  to  remain  for  the 
purpose  of  being  sold  there,  so  as  to  render  the  passage  less 
convenient,  although  not  entirely  to  obstruct  it,  and  the  court 
said:  "  It  is  true,  necessity  justifies  actions  which  would  other- 
wise be  nuisances.  It  is  true,  also,  that  this  necessity  need  not 
be  absolute:  it  is  enough  if  it  be  reasonable.  No  man  has  a 
right  to  throw  wood  or  stones  into  the  street  at  his  pleasure. 
But  inasmuch  as  fuel  is  necessary,  a  man  may  throw  wood 
into  the  street  for  the  purpose  of  having  it  carried  to  his  house, 
and  it  may  lie  there  a  reasonable  time.  So,  because  building 
is  necessary,  stones,  bricks,  lime,  sand,  and  other  materials 
may  be  placed  in  the  street,  provided  it  be  done  in  the  most 
convenient  manner.  On  the  same  principle  a  merchant  may 
have  his  goods  placed  in  the  street  for  the  purpose  of  removing 
them  to  his  store  in  a  reasonable  time.  But  he  has  no  right 
to  keep  them  in  the  street  for  the  purpose  of  selling  them 

there,  because  there  is  no  necessity  for  it I  can  easily 

perceive  that  it  is  for  the  convenience  and  the  interest  of  an 
auctioneer  to  place  his  goods  in  the  street  because  it  saves  the 
expense  of  storage.  But  there  is  no  more  necessity  in  his 
case  than  in  that  of  a  private  merchant.  It  is  equally  in  the 
power  of  the  auctioneer  and  the  merchant  to  procure  ware- 
houses and  places  of  deposit  in  proportion  to  the  extent  of 
their  business." 

In  People  v.  Cunningham,  1  Denio,  524,  43  Am.  Dec.  709, 
the  defendants  were  indicted  for  obstructing  one  of  the  streets 
in  the  city  of  Brooklyn,  and  the  court  said:  "The  fact  that 
the  defendants'  business  was  lawful  does  not  afibrd  them  a 
justification  in  annoying  the  public  in  transacting  it;  it  gives 
them  no  right  to  occupy  the  public  highway  so  as  to  impede 
the  free  passage  of  it  by  the  citizens  generally.  The  obstruc- 
tion complained  of  is  not  of  the  temporary  character  which 


TTov.  1887.]  Callanan  v.  Oilman.  835 

may  be  excused  within  the  necessary  qualifications  referred 
to  in  the  cases  cited,  but  results  from  a  systematic  course  of 
carrying  on  the  defendants'  business.  It  is  said  that  this 
business  cannot  be  carried  on  in  any  other  manner  at  that 
place  so  advantageously  either  to  individuals  or  the  public. 
The  answer  to  this  is  to  be  found  in  the  observations  of  the 
court  in  Russell's  case,  above  cited.  *They  must  either  en- 
large their  premises,  or  remove  their  business  to  some  more 
convenient  spot.'  Private  interests  must  be  made  subservient 
to  the  general  interest  of  the  community."  In  Welsh  v.  Wil- 
son, 101  N.  Y,  254,  54  Am.  Rep.  698,  a  case  where  the  defend- 
ant obstructed  a  sidewalk  in  the  city  of  New  York  with  skids 
a  few  minutes  while  he  was  engaged  in  removing  two  large 
cases  of  merchandise  from  his  store  to  a  truck,  in  consequence 
of  which  the  plaintiff  claimed  to  have  been  injured  while  pass- 
ing through  the  street,  we  said:  "The  defendant  had  the 
right  to  place  the  skids  across  the  sidewalk  temporarily  for 
the  purpose  of  removing  the  cases  of  merchandise.  Every 
one  doing  business  along  a  street  in  a  populous  city  must  have 
Buch  a  right,  to  be  exercised  in  a  reasonable  manner  so  as  not 
to  unnecessarily  encumber  and  obstruct  the  sidewalk."  In 
Mathews  v.  Kelsey,  58  Me.  56,  the  court  said:  "As  an  incident 
to  this  right  of  transit,  the  public  have  a  right  to  load  and 
unload  such  vehicles  (in  the  street  or  from  the  street)  as  they 
find  it  convenient  to  use.  But  in  this  respect  each  individual 
is  restrained  by  the  rights  of  others.  He  must  do  his  work  in 
such  careful  and  prudent  manner  as  not  to  interfere  unreason- 
ably with  the  convenience  of  others." 

Now,  what  are  the  facts  of*  this  case?  Both  the  plaintifi*8 
and  the  defendant  were  extensive  retail  and  wholesale  grocers, 
having  stores  near  to  each  other  on  the  south  side  of  Vesey 
Street  in  the  city  of  New  York;  and  a  large  portion  of  the 
plaintifl's'  customers,  in  order  to  reach  their  store,  were  obliged 
to  pass  upon  the  sidewalk  in  front  of  the  defendant's  store. 
Goods  were  taken  to  and  from  the  defendant's  store  by  means 
of  trucks  loaded  in  the  street.  The  trucks  were  placed  in  the 
street  adjoining  the  sidewalk,  and  then  a  bridge,  made  of  two 
skids  planked  over  so  as  to  make  a  plank-way  three  feet  wide 
and  fifteen  feet  long,  with  side  pieces  three  and  one  half  inches 
high,  was  placed  over  the  sidewalk  with  one  end  resting  upon 
the  stoop  of  the  defendant's  store,  and  the  other  end  upon  a 
wooden  horse  outside  of  the  sidewalk  near  the  truck  to  be 
loaded.    This  bridge  was  elevated  above  the  sidewalk  at  the 


836  Callanan  v.  Oilman.  [New  York, 

inner  end  about  twelve  inches,  and  at  the  outer  end  about 
twenty  inches,  thus  entirely  obstructing  the  sidewalk,  and 
goods  were  conveyed  over  this  bridge  to  and  from  the  store. 
Persons  wishing  to  pass  upon  the  sidewalk  in  front  of  the 
store,  when  the  bridge  was  in  place,  were  obliged  to  step  upon 
the  stoop  and  go  around  that  end  of  the  bridge.  The  bridge 
was  usually  removed  when  not  in  use;  but  there  was  uncon- 
tradicted evidence  that  it  was  sometimes  permitted  to  remain 
in  position,  when  not  in  use,  for  ten  or  fifteen  minutes,  and 
that  it  sometimes  remained  in  position  when  in  use  one  hour, 
one  hour  and  a  half,  and  sometimes  even  two  hours;  and 
the  court  found  that  the  bridge  thus  remained  in  position 
across  the  sidewalk  from  four  to  five  hours  each  business  day 
between  the  hours  of  9  o'clock  a.  m.  and  5  p.  m.,  and  that  it 
obstructed  the  sidewalk  the  greater  partof  every  business  day. 

Such  an  extensive  and  continuous  use  of  the  sidewalk  can- 
not be  justified.  It  was  a  practical  appropriation,  by  the  de- 
fendant, of  the  sidewalk  in  front  of  his  store  to  his  private  use, 
in  disregard  of  the  public  convenience.  Even  if,  in  some 
sense,  such  use  was  necessary  to  the  convenient  and  profitable 
transaction  of  his  business,  and  if  the  obstruction  of  the  side- 
walk was  no  more,  and  even  less,  than  it  would  be  by  any 
other  method  of  doing  the  business,  these  circumstances  do  not 
justify  the  obstruction.  If  the  defendant  cannot  transact  his 
extensive  business  at  that  place  without  thus  encroaching 
upon,  obstructing,  and  almost  appropriating  the  sidewalk  dur- 
ing the  business  hours  of  the  day,  he  must  either  remove  his 
business  to  some  other  place,  or  enlarge  his  premises  so  as  to 
accommodate  it.  It  was  incumbent  upon  the  defendant  to 
show,  not  only  that  the  use  he  made  of  the  sidewalk  was 
necessary  in  his  business,  but  also  that  it  was  reasonable  in 
reference  to  the  public  convenience.  That  it  was  unreason- 
able is  too  clear  for  dispute.  He  might  use  the  bridge  to 
load  or  unload  a  single  truck;  and  this  he  could  do  at  in- 
tervals during  the  day,  at  no  one  time  obstructing  the  street 
for  any  considerable  length  of  time.  But  there  is  no  author- 
ity, and  no  rule  of  law,  which  would  warrant  such  an  obstruc- 
tion daily  for  hours,  or  even  one  hour  continuously.  The 
defendant  was  therefore  guilty  of  a  public  nuisance. 

But  the  defendant  claims  that  the  plaintifis  did  not  allege 
in  their  complaint  nor  prove  such  special  damage  as  entitled 
them  to  maintain  this  action.  It  is  the  undoubted  law  that 
the  plaintifis  could  not  maintain  this  action  without  alleging 


Nov.  1887.]  Callanan  v.  Oilman.  837 

and  proving  that  they  sustained  special  damage  from  the  nui- 
sance, different  from  that  sustained  by  the  general  public;  in 
other  words,  that  the  damage  they  sustained  was  not  common 
to  all  the  public  living  or  doing  business  in  Vesey  Street,  and 
having  occasion  to  use  the  same. 

The  plaintiffs  did  not  demand  any  damages  in  their  com- 
plaint, and  none  were  awarded  to  them  by  the  judgment. 
They  simply  demanded  an  injunction  restraining  the  nui- 
sance, and  such  was  the  judgment  given  to  them.  The  com- 
plaint sufficiently  alleges  the  special  damages.  It  sets  forth 
the  location  of  the  stores  of  the  parties  on  the  same  side  of  the 
street,  near  to  each  other,  the  character  of  the  bridge,  which, 
when  in  use  by  the  defendant,  was  only  thirty-five  feet  from 
plaintiffs'  store,  and  the  manner  and  extent  of  the  obstruction 
upon  the  sidewalk.  From  these  facts  alone,  as  they  are  fully 
set  forth,  it  clearly  appears  that  the  plaintiffs  suffered  damage 
from  the  nuisance,  which  was  not  common  to  other  persons 
•having  occasion  to  use  the  street.  But  the  complaint  goes  still 
further,  and  distinctly  alleges  that  the  obstruction  prevents 
"  the  plaintiffs  and  their  employees  or  patrons,  and  all  persons, 
from  passing  along  said  sidewalk  to  and  from  Church  Street, 
and  to  and  from  plaintiffs'  said  store,  to  the  detriment  and 
great  injury  of  plaintiffs  and  their  said  business  ";  that  the 
obstruction  had  been  maintained  for  more  than  six  months 
prior  to  the  commencement  of  the  action  on  an  average  of  five 
hours  each  day  during  the  business  hours  of  the  day,  "  to  the 
great  and  irreparable  injury  of  the  plaintiffs."  While  the 
complaint  is  not  very  definite  as  to  the  particular  d;  mage  suf- 
fered by  the  plaintiffs,  and  the  extent  thereof,  there  is  enough 
to  show  that  they  suffered  some  special  damage;  and  if  the 
defendant  was  not  satisfied  with  the  complaint  in  these  re- 
spects, he  should  have  moved  to  make  it  more  definite,  or  for  a 
bill  of  particulars.  The  defendant  having  taken  issue  upon 
the  complaint,  and  gone  to  trial,  it  must  be  held  sufficient  to 
warrant  the  proof  given. 

The  facts  proved  and  found  show  special  damage  from  the 
nuisance  to  the  plaintiffs.  There  was  some  proof  that  some 
custom  was  turned  from  the  plaintiffs'  store  on  account  of  the 
obstruction,  and  that  pedestrians  were  turned  to  the  north  side 
of  the  street  before  reaching  plaintiffs'  store.  That  the  plain- 
tiffs suffered  some  special  damage  not  common  to  persons 
merely  using  the  street  for  passage  is  too  obvious  for  reason- 


838  Callanan  v.  Oilman.  [New  York, 

able  diBpute.    Direct  proof  of  the  damage  was  not  needed. 
All  the  circumstances  show  it. 

It  is  further  objected,  on  the  part  of  the  defendant,  that 
some  of  the  material  findings  of  fact  made  by  the  trial  judge 
were  not  upheld  by  any  evidence.  A  careful  scrutiny  of  the 
evidence  fails  to  satisfy  us  that  this  objection  is  well  founded. 
On  the  contrary,  the  undisputed  evidence  showed  the  nuisance, 
the  special  damage,  and  the  right  of  the  plaintifi's  to  a  judg- 
ment restraining  such  nuisance.  The  evidence  of  the  defend- 
ant was  directed  mainly  to  show  that  the  bridge  was  necessary 
in  his  business,  that  skids  and  other  similar  appliances  were 
in  common  use  by  merchants  in  the  city,  and  that  he  left  a 
passage-way  for  pedestrians  on  and  over  his  stoop.  The  alleged 
necessity,  as  we  have  shown,  furnished  the  defendant  no  justi- 
fication for  the  nuisance,  and  it  may  be  conceded  that  similar 
appliances  are  quite  common  in  New  York.  It  is  not  the 
nature  of  this  appliance  that  furnishes  the  basis  of  our  judg- 
ment, but  its  unreasonable  use.  The  defendant  could  notf 
justify  his  unreasonable  obstruction  of  the  sidewalk  by  show- 
ing that  he  allowed  pedestrians  to  pass  around  or  through  his 
store,  or  over  his  elevated  stoop,  between  moving  barrels  and 
packages.  The  stoop  is  no  part  of  the  sidewalk,  and  the 
defendant  could  not  appropriate  that  to  his  private  use  and 
substitute  his  stoop  for  the  public  convenience.  While  tem- 
porarily obstructing  the  sidewalk,  he  should  give  pedestrians 
the  best  passage  he  can  over  his  stoop.  But  this  should  be  a 
temporary,  not  a  permanent,  shift.  He  cannot  justify  the  ob- 
struction of  the  sidewalk  for  hours  because  he  gives  the  pub- 
lic a  less  convenient  passage  over  his  stoop. 

The  trial  judge  refused  to  make  any  findings  upon  certain 
questions  of  fact  submitted  to  him,  and  this  is  now  complained 
of  as  error.  It  is  the  duty  of  the  trial  judge  to  find  upon 
every  material  question  of  fact  submitted  to  him  and  involved 
in  the  evidence.  But  his  refusal  to  do  so  will  not  be  an  error 
fatal  to  his  judgment,  if  the  findings  asked  were  not  material 
to  the  decision  of  the  case,  or  would  not  be  beneficial  to  the 
party  asking  them.  Among  the  findings  thus  submitted  on 
the  part  of  the  defendant  were  the  following:  "That  the 
defendant  uses  the  place  complained  of  at  a  time  and  in  a 
manner  that  is  reasonable  under  all  the  circumstances";  "that 
the  use  of  the  sidewalk  by  the  defendant  does  not  unreason- 
ably abridge  or  obstruct  the  passage  of  pedestrians."  The 
judge  should  properly  have  found  upon  these  questions;  but 


Nov.  1887.]  Callanan  v.  Oilman.  839 

upon  the  undisputed  evidence  he  should  have  found  against 
the  defendant,  and  therefore  he  has  suffered  no  harm  from  the 
neglect  or  refusal  to  find.  The  facts  proved  by  uncontra- 
dicted evidence,  and  found,  showed  that  the  obstruction  was 
unreasonable.  If  the  trial  judge  had  responded  to  these 
findings  in  favor  of  the  defendant,  and  had  yet  rendered 
judgment  against  him,  the  judgment  would  still  have  been 
based  upon  sufficient  facts,  and  could  not  have  been  disturbed. 
The  opinion  and  conclusion  of  the  trial  judge,  notwithstand- 
ing the  other  facts  found,  that  the  obstruction  caused  by  the 
defendant  was  not  unreasonable,  would  not  have  been  controll- 
ing and  would  not  have  sustained  a  judgment  in  favor  of  the 
defendant.  Such  a  judgment  would  have  been  against  the 
evidence. 

But  the  judgment  rendered  is  too  broad  and  general  in  its 
terms.  It  is  as  follows:  "  That  plaintiffs  are  entitled  to  an 
injunction  perpetually  restraining  the  defendant,  his  agents, 
servants,  or  employees,  from  obstructing  the  southerly  side- 
walk of  Vesey  Street,  in  front  of  the  premises  Nos.  35  and  37 
Vesey  Street,  by  any  plank-way  or  bridge,  or  other  like  ob- 
struction elevated  above  the  sidewalk,  and  reaching  from  said 
store,  or  from  the  stoop  in  front  of  said  store,  to  the  roadway 
of  said  Vesey  Street,  or  from  hindering  or  preventing  the 
plaintiffs,  or  their  employees,  servants,  and  customers,  from 
having  the  free  and  unobstructed  use  of  and  passage  along 
the  sidewalk  of  said  Vesey  Street,  in  front  of  said  premises 
Nos.  35  and  37  Vesey  Street,  by  any  like  obstruction." 

The  judgment  entirely  prevents  the  defendant  from  using 
the  bridge  or  other  like  obstruction.  We  find  nothing  in  the 
evidence  which  justifies  this.  We  cannot  perceive  that  the 
bridge  is  in  any  material  degree  a  greater  obstruction  than 
skids  would  be  if  similarly  used.  The  judgment  should  be  so 
modified  as  to  read  as  follows:  "It  is  ordered  and  adjudged 
that  the  defendant,  his  agents,  servants,  and  employees,  refrain 
from  unnecessarily  or  unreasonably  obstructing  the  southerly 
sidewalk  of  Vesey  Street,  in  front  of  the  premises  Nos.  35  and 
37  Vesey  Street,  by  any  plank-way  or  bridge,  or  other  like 
obstruction  elevated  above  the  sidewalk,  and  reaching  from 
said  premises,  or  from  the  stoop  in  front  of  the  same,  to  the 
roadway  of  said  Vesey  Street,  or  from  unnecessarily  or  unrea- 
sonably hindering  or  preventing  the  plaintiffs,  or  their  em- 
ployees, servants,  and  customers,  from  having  the  convenient 
use  of  and  passage  along  the  sidewalk  of  said  Vesey  Street, 


840  Callanan  v.  Oilman.  [New  York, 

in  front  of  said  premises  Nos.  35  and  37  Vesey  Street,  by  any 
like  obstruction;  and  it  is  further  adjudged  that  the  plaintifif& 
recover  of  the  defendant  $164.20  costs  of  this  action  ";  and  a» 
BO  modified,  it  should  be  afl&rmed,  without  costs  to  either  party 
in  this  court. 

It  is  diflBcult  to  frame  the  judgment,  by  the  use  of  general 
language,  so  as  to  protect  and  secure  the  rights  of  the  parties. 
But  the  rules  we  have  laid  down  in  this  opinion  will  probably 
be  found  suflBcient  as  a  guide,  if  it  should  be  necessary  to 
enforce  the  judgment  as  modified,  and  therefrom  the  mean- 
ing and  scope  of  the  important  words  "  unnecessarily  "  and 
"  unreasonably  "  may  with  suflBcient  accuracy  be  ascertained. 

Judgment  accordingly. 


Right  of  Private  Person  to  Occctpt  or  Obstruct  Ptiblio  Streets. — 
The  public  have  a  right  to  passage  over  a  street,  to  its  atmost  extent,  unob- 
Btmcted  by  any  impediments.  And  any  unauthorized  obstruction  which  un- 
necessarily impedes  or  incommodes  the  lawful  use  of  a  highway  is  a  publia 
nuisance  at  common  law;  Angell  on  Highways,  3d  ed.,  sec.  323;  Thompson 
on  Highways,  3d  ed.,  sec.  314;  Wood  on  Law  of  Nuisances,  2d  ed.,  sec.  248? 
Slate  V.  Mayor  etc.  of  Mobile,  5  Port.  279;  30  Am.  Dec.  564;  State  v.  Merritt, 
35  Conn.  314;  McCloughry  v.  Finney,  37  La.  Ann.  27;  People  v.  Cunningham, 
1  Denio,  624;  43  Am.  Dec.  709;  Lavery  v.  Hannigan,  52  N.  Y.  Super.  Ct.  463; 
Ely  V.  Campbell,  59  How.  Pr.  333;  Clifford  v.  Dam,  81  N.  Y.  52.  A  street 
includes  the  sidewalks:  Bonnet  v.  San  Francisco,  65  Cal.  230;  Ely  v.  CampbeU,. 
59  How.  Pr.  333;  Clifford  v.  Dam,  81  N.  Y.  52. 

Tempobaet  Obstruction  and  Paetial  Occupation  of  Streets  may,  bow- 
ever,  be  justified  on  the  ground  of  necessity.  The  street  may  be  obstructed 
by  placing  thereon  materials  for  building  or  repairing,  if  it  be  done  in  such  a 
way  as  to  occasion  the  least  inconvenience  to  the  public,  and  the  obstruction 
be  not  continued  for  an  unreasonable  length  of  time.  So,  too,  a  private  per- 
son carrying  on  business  on  a  street  may  occupy  a  portion  of  the  street  for  a 
reasonable  length  of  time  for  the  necessary  purpose  of  receiving  and  deliver- 
ing his  goods.  A  street  may  also  be  used  for  the  purpose  of  moving  a 
building  from  one  place  to  another,  provided  it  be  done  in  a  reasonable  and 
judicious  manner.  Streets  may  be  lawfully  used  for  other  purposes  than  the 
accommodation  of  the  traveling  public,  provided  such  use  be  not  inconsistent 
with  the  reasonably  free  passage  of  travelers  over  them.  Slight  inconve- 
niences and  occasional  interruptions  in  the  use  of  a  street,  which  are  tem- 
porary and  reasonable,  are  not  illegal  merely  because  the  public  may  not,  for 
the  time  being,  have  the  full  use  of  the  highway:  Hex  v.  Jones,  3  Camp.  231;. 
Hex  V.  Cross,  3  Id.  224;  Bex  v.  Russell,  6  East,  430;  Bex  v.  Carlile,  6  Car.  & 
P.  636;  Begina  v.  Betts,  16  Ad.  &  E.,  N.  S.,  1022;  Wood  on  Law  of  Nui- 
sances, sec.  256;  Thompson  on  Highways,  3d  ed.,  314;  Wood  v.  Mears,  12' 
Ind.  515;  74  Am.  Dec.  222;  Matliews  v.  Kelsey,  58  Me.  56;  4  Am.  Rep.  248; 
O'Linda  v.  Lothrop,  21  Pick.  292;  Gahagan  v.  Boston  <k  L.  R.  B.  Co.,  1  Allen, 
187;  79  Am.  Dec.  724;  Judd  v.  Fargo,  107  Mass.  264;  Gravea  v,  Shattuck,  35- 
N.  H.  257;  69  Am.  Dec.  536;  Pevple  v.  Cunningliam,  1  Denio,  524;  43  Am. 
Dec.  7.09;  PeopU  v.  Horton,  64  N.  Y.  610;  Welsh  v.  Wilton,  101  Id.  254;  54 
Am.  Rep.  698;  Northrop  v.  Burrows,  10  Abb.  Pr.  366;  StaU  t.  EdenM,  8& 


Nov.  1887.]  Callanan  v.  Oilman.  841 

N.  C.  526;  Clarh  v.  Fry,  8  Ohio  St.  358;  72  Am.  Dec.  590;  CmnmonwedUh  v. 
Passmore,  1  Serg.  &  R.  219;  Palmer  v.  Silverthom,  32  Pa.  St.  65;  MaUory  v. 
Oriffey,  85  Id.  275;  JbcAem  v.  Robinson,  66  Wis.  638;  57  Am.  Rep.  298. 

In  the  case  of  Rex  v.  Jones,  3  Camp.  231,  which  was  an  indictment  against 
the  defendant,  a  timber  merchant  in  St.  John's  Street,  London,  for  the  ob« 
Btmction  of  a  part  of  the  street  in  the  hewing  and  sawing  of  logs,  the  defense 
was,  that  he  occupied  a  small  timber-yard  on  the  street  where  the  ofifense 
charged  was  committed,  and  that  owing  to  the  narrowness  of  the  street  at 
that  place,  and  the  constmction  of  his  own  premises,  he  had  in  several  in- 
stances necessarily  deposited  long  sticks  of  timber  in  the  street,  and  had 
them  sawed  into  shorter  pieces  there,  before  they  could  be  carried  into  the 
yard.  His  counsel  argued  that  he  had  a  right  to  do  this,  because  it  was 
necessary  to  the  carrying  on  of  his  business,  and  that  it  could  not  occasion 
any  more  inconvenience  to  the  public  than  draymen  taking  hogsheads  of  beer 
from  their  drays,  and  letting  them  down  into  a  cellar.  Lord  Ellenborougb, 
as  is  shown  by  the  quotation  given  from  his  opinion  in  the  principal  case,  was 
not  convinced  by  the  argument,  and  entertained  no  doubt  of  the  guilt  of  the 
defendant.  And  Ruffin,  J.,  in  delivering  the  opinion  of  the  court  in  State 
V.  Edena,  85  N.  C.  526,  said:  "Any  permanent  obstruction  to  a  public  high- 
way, such  as  would  be  caused  by  the  erection  of  a  fence  or  building  thereon, 
is  of  itself  a  nuisance,  though  it  should  not  operate  as  an  actual  obstacle  to 
travel,  or  work  a  positive  inconvenience  to  any  one.  It  is  an  encroachment 
upon  a  public  right,  and  as  such  is  not  permitted  by  the  law  to  br  done  with 
impunity.  But  the  very  object  of  a  highway  is  that  it  may  be  used,  and 
though  travel  be  its  primary  use,  it  still  may  be  put  to  other  reasonable  uses; 
and  whether  a  particular  use  of  it,  which  does  not  of  itself  amount  to  a 
nuisance,  is  reasonable  or  not,  is  a  question  of  fact  to  be  judged  of  by  th» 
jury  according  to  the  circumstances  of  the  case.  Unlike  the  case  of  a  per- 
manent obstruction  just  referred  to,  it  is  not  the  manner  of  using  the  high- 
way which  constitutes  the  nuisance,  but  the  inconvenience  to  the  publio 
which  proceeds  from  it,  and  unless  such  inconvenience  really  be  its  conse- 
quence, there  is  no  offense  committed." 

Necessary  Obstbdction  of  Street  httst  hot  be  Unreasonable,  nor 
unreasonably  prolonged  in  point  of  time.  If  a  person  finds  it  necessary  to 
obstruct  a  publio  street,  he  must  see  to  it  that  the  inconvenience  to  the 
traveling  public  be  as  slight  aa  possible,  and  that  it  be  allowed  to  continaa 
for  a  reasonable  time  only.  And  a  reasonable  time  is  such  time  as  is  neces- 
sary in  the  ordinary  course  of  business  for  its  removal.  A  teamster  has  no 
right  to  keep  his  team  standing  in  the  street  in  such  a  manner  as  to  impede 
travel  for  an  unnecessary  length  of  time.  If  his  wagon  breaks  down  and  he 
is  compelled  to  throw  his  goods  upon  the  street,  be  must  remove  them  out  of 
the  way  in  a  reasonable  time.  A  tradesman  has  no  right  to  deposit  his  goods 
■nd  wau^s  on  the  street  for  the  purpose  of  exposing  them  for  sale.  He  is 
bound  to  carry  on  his  business  without  producing  serious  annoyance  or  in- 
convenience to  others:  Wood  on  Nuisances,  sec.  257;  Rex  v.  Jonej,  3  Camp. 
230;  Rex  v.  RusteU,  6  East,  427;  FritM  v.  Hobton,  42  L.  T.,  N.  S.,  225;  Me- 
Clowjhry  v.  Finney,  37  La.  Ann.  27;  Turner  v.  Holtzman,  64  Md.  148;  39 
Am.  Rep.  361;  Nortlirap  v.  Burrows,  10  Abb.  Pr.  365;  Prime  v.  Ttoentythird 
SL  R.  R.  Co.,  1  Abb.  N.  C.  63;  Dainis  v.  Sipperly,  17  Hun,  69;  State  v.  Edens, 
85  N.  C.  622;  Branahan  v.  HoUl  Co.,  39  Ohio  St.  333;  48  Am.  Rep.  457; 
Benmett  v.  Lovell,  12  R.  L  166.  In  Turner  v.  HoUxman,  supra,  it  was  held 
that  a  stage-ooach  stopping  for  an  unreasonable  length  of  time  on  a  public 
highway,  iu  front  of  and  obstructing  the  entrance  to  a  camp-meeting,  was  a 


842  Callanan  v.  Gilman.  [New  York, 

nuisance  that  might  be  removed  by  those  inconvenienced  thereby,  or  by  a 
deputy  sheriff.  In  Denrda  v.  Sipperly,  supra,  it  was  decided  that  a  person  who 
builds  a  cider-mill  abutting  upon  a  road,  so  that  his  patrons  obstruct  the  way 
with  teams,  etc.,  is  liable  to  an  action  by  those  injured  thereby.  And  in  Prime 
V.  Twenty-third  SL  R.  R.  Co.,  supra,  it  was  held  that  a  street  railway  com- 
pany has  no  right  to  leave  snow  which  it  removes  from  its  tracks  heaped  up 
between  them  and  the  plaintiff's  premises,  for  a  longer  time  than  was  rea- 
sonably requisite  for  taking  it  away. 

UsB  OF  Street  for  Displaying  Goods  offered  for  sale  by  a  tradesman 
or  merchant  is  not  allowable.  An  individual  has  no  right  to  appropriate  a 
part  of  the  street  to  his  exclusive  use  in  carrying  on  his  business,  even 
though  enough  space  be  left  for  the  passage  of  the  public.  Nor  has  a  store- 
keeper any  right  to  use  the  sidewalk  in  front  of  his  store  as  a  sort  of  an 
annex  to  his  pl£u;e  of  business.  If  a  man's  premises  are  not  sufficiently 
extensive  for  the  transaction  of  his  business  without  encroaching  upon  the 
street  or  sidewalk,  he  is  bound  to  seek  more  spacious  quarters  elsewhere. 
The  public  convenience  is  paramount  to  the  necessities  of  private  indi- 
viduals: Wood  on  Nuisance,  sec.  257;  Wood  v.  Hears,  12  Ind.  515;  74  Am. 
Dec.  222;  State  v.  Berdetta,  73  Ind.  185;  38  Am.  Rep.  117;  CcmmonweaUIi  v. 
Ruggles,  6  Allen,  588;  Hart  v.  Mayor  etc.  of  Albany,  9  Wend.  571;  24  Am. 
Dec.  165;  St.  John  v.  Mayor  etc.,  6  Duer,  315;  Lavery  v.  Hanmgan,  52  N.  Y. 
Super.  Ct.  463;  Commonwealth  v.  WtTUworth,  Bright.  N.  P.  318;  Common' 
wealth  V.  Passmore,  1  Serg.  &  R.  217. 

Permanent  Structitres  Obstructino  Streets  and  interfering  with  their 
nnimpeded  use  by  the  public  are  nuisances,  which  may  be  abated,  although 
there  be  space  left  for  the  passage  of  the  public:  State  v.  Berdetta,  73  Ind. 
185;  38  Am.  Rep.  117;  Bybee  v.  State,  94  Ind.  443;  Emerson  v.  Babcock,  66 
Iowa,  257;  55  Am.  Rep.  273;  Commonwealth  v.  Wilkinson,  16  Pick.  175;  26 
Am.  Dec.  654;  Stetson  v.  Faxon,  19  Pick.  147;  31  Am.  Dec.  123;  Trencrr  v. 
Jackson,  15  Abb.  Pr.,  N.  S.,  115;  46  How.  Pr.  389;  People  v.  Mayor  etc.  of 
New  York,  18  Abb.  N.  C.  123;  Humje  v.  Mayvr  etc.  of  New  York,  74  N,  Y. 
264;  Reimer's  Appeal,  100  Pa.  St.  182;  45  Am.  Rep.  373;  State  v.  Leaver,  62 
Wis.  387;  Read  v.  Perrett,  L.  R.  1  Ex.  D.  349.  The  following  are  instances 
of  such  structures,  held  to  be  nuisances:  A  bam  occupying  nearly  half  the 
width  of  a  street  in  a  populous  village;  a  show-case  in  front  of  a  store  ex- 
tending beyond  the  house  line;  a  bay-window  sixteen  feet  above  the  side- 
walk, and  projecting  three  and  a  half  feet  over  the  sidewalk;  a  bridge 
extending  across  a  street  from  the  second  story  of  a  building  on  one  side  of 
the  street  to  the  second  story  of  another  building  on  the  opposite  side  of  the 
street;  a  hay-scales  in  the  street  in  front  of  the  owner's  premises;  a  fruit- 
stand  encroaching  upon  the  sidewalk;  a  show-board  extending  eleven  and  a 
half  inches  over  the  sidewalk  in  front  of  a  shop;  a  wooden  awning  in  front 
of  a  store  extending  over  the  sidewalk.  But  in  Hawkins  v.  Sanders,  45  Mich. 
491,  it  was  held  that  such  an  awning  was  not  per  se  a  nuisance.  So,  too,  in  Oa- 
born  V.  Union  Ferry  Co.,  53  Barb.  629,  it  was  held  that  a  log  of  wood  placed 
by  the  defendant  in  the  public  street,  at  the  threshold  of  its  gate,  was  a 
nuisance. 

One  Who  Ccts  Ditch  ob  Mill-race  Across  Highway  is  bound  to  place 
a  bridge  over  it  and  keep  the  bridge  in  repair;  otherwise  he  will  be  liable  for 
maintaining  a  nuisance:  Venard  v.  Cross,  8  Kan.  248;  State  v.  RayphoUx,  32 
Id-  450;  Dygert  v.  Schenck,  23  Wend.  445;  35  Am.  Dec.  675;  Burton  Town- 
$hip  V.  Tuttle,  30  Ohio  St.  62;  ViUage  qf  West  Bend  v.  Manth  69  Wis.  69. 


Nov.  1887,]  Callanan  v.  Oilman.  843 

Tradesman  cannot  so  Conduct  his  Bitsiness  as  to  Collect  Crowds  in 
front  of  his  store,  thereby  interfering  with  the  public  travel:  Sex  v.  Carlile, 
6  Car.  &  P.  636;  Wood  on  Nuisances,  sees.  264,  265;  Gilbert  v.  MicJcle,  4  Sand. 
Ch.  357;  Eliaa  v.  SutJierland,  18  Abb.  N.  C.  126.  But  see  Barling  v.  West, 
29  Wis.  307;  nor  will  a  person  be  permitted  to  stand  on  the  sidewalk  in 
front  of  another's  house  and  remain  there,  using  towards  him  abusive  and  in- 
sulting language:  Adama  v.  Rivers,  11  Barb.  390. 

Person  has  No  Right  to  Use  Highway  for  Pasture-ground  for  cattle 
or  sheep,  nor  to  allow  horses  to  run  at  large  therein:  Baldwin  v.  Endgn,  49 
Conn.  113;  44  Am.  Eep.  205;  Stackpole  v.  Healy,  16  Mass,  33;  8  Am.  Dec 
121;  Tonawanda  R.  R.  Co.  v.  Hunger,  5  Denio,  255;  49  Am.  Dec.  239. 

Streets  may  not  be  Used  as  Play-grocnd:  Stinsonv.  City  of  Gardiner, 
42  Me.  248;  06  Am.  Dec.  281;  Vosburgh  v.  Moak,  1  Cush.  453;  48  Am.  Dec. 
613. 

Railroad  Company  has  No  Right  to  Unnecessarily  Obstruct  Streets 
by  letting  its  cars  stand  across  them:  Ranch  v.  Lloyd,  31  Pa.  St.  358;  72  Am. 
Dec,  747;  Murray  v.  SouUi.  Carolina  R.  R.  Co.,  10  Rich.  227;  70  Am.  Dec. 
219;  nor  to  use  the  street  for  storing  and  switching  its  cars,  to  the  special 
injury  of  an  abutting  owner,  although  the  fee  of  the  street  is  in  the  city: 
Mahady  v.  Bushtoick,  91  N.  Y.  148;  43  Am.  Rep.  661;  nor  without  authority 
to  lay  additional  tracks  in  the  street:  Pittsburgh  etc.  R.  R.  Co.  v.  Reich,  101 
IlL  157;  State  v.  Troy  ufc  B.  R.  R.  Co.,  57  Vt,  144;  nor  to  dig  a  ditch  or  exca- 
vation in  a  street  so  as  to  cut  off  an  owner's  access  to  his  lot  from  the  street: 
Brdkken  v,  Minneapolis  <t  St.  L.  R'y  Co.,  29  Minn,  41;  nor  to  leave  hand- 
cars or  other  obstructions  on  the  side  of  the  highway:  Vars  v.  Grand  Trunk 
R'y  Co.,  23  U.  C.  C.  P,  143;  Brmmell  v,  Troy  A  B.  R.  R.  Co.,  55  Vt.  218; 
nor  to  use  a  part  of  the  street  as  a  freight  yard:  Oahagan  v,  Boston  A  L. 
R.  R.  Co.,  1  Allen,  187;  79  Am.  Dec.  724;  nor  to  permanently  appropriate  any 
portion  of  a  public  highway  by  obstructions  which  materially  interfere  with 
public  travel:  Little  Miami  R.  R.  Co.  v.  Commissioners  qf  Green  Co.,  31  Ohio 
St.  338. 

Trees  Standing  in  Highway  do  not  constitute  a  nuisance,  unless  they 
make  an  obstruction  to  travel:  BiUs  v.  Belknap,  36  Iowa,  583;  Patterson  v. 
Vail,  43  Id.  142;  EvertU  v.  CUy  qf  Council  Bluffs,  46  Id.  66,  The  owner  of 
land  through  which  a  public  road  passes,  who  gives  his  consent  to  the  cutting 
down  of  a  tree  standing  thereon  within  a  few  feet  of  the  traveled  track,  ia 
guilty  of  obstructing  the  highway,  if  the  tree  falls  within  the  road  and  is 
allowed  to  remain  there  to  the  hindrance  or  inconvenience  of  travelers.  And 
he  is  not  relieved  from  liability  by  making  it  a  condition  of  such  assent  that 
the  tree  shoalu  not  be  felled  into  the  road:  Nagle  v.  Brown,  37  Ohio  St  7. 

Owner  of  Land  through  Which  Road  Passes  has  No  Right  to  Ob- 
struct It  because  he  has  not  been  paid  for  the  land  taken  therefor:  Draper 
v,  Mackey,  35  Ark.  497;  nor  because  he  has  opened  a  new  road  equally  aa 
convenient  for  the  public  as  the  old  one:  State  v.  Harden,  II  S.  C,  360, 

Person  Occufyimo  Street  fob  Funeral  haa  the  right  to  determine  tha 
order  in  which  the  carriages  shall  form  in  the  prooeaaion:  Goodwin  v.  Avery, 
26  Conn.  585;  68  Am.  Dec,  410.    ^ 

Obstruction  of  Street  Incapable  of  being  Used  for  public  travel  in 
consequence  of  natural  obstacles  b  not  a  punishable  offense:  State  v.  Sfiinklet 
40  Iowa,  131. 

Traveler  must  not  Stubbornly  Remain  on  Right  Side  of  the  trav- 
•led  part  of  a  highway,  and  wantonly  cause  a  collision,  when  a  slight  change 


844  BcsHBY  V.  New  York  etc.  R.  R.  Co.     [New  York, 

of  position  would  have  avoided  it:  O'Malley  y.  Dom,  7  Wia.  236;  73  Am. 
Dec.  403. 

Excavations  Propekly  and  Safely  Made  under  Street,  for  the  con- 
veaience  of  adjoining  owners,  are  not  unlawful,  if  they  are  properly  guarded 
and  kept  in  repair:  Fisher  v.  Tldrkell,  21  Mich.  1.  But  if  not  properly  guarded, 
they  constitute  a  nuisance:  Terivperance  Hall  Associaiion  v.  Giles,  33  N.  J.  L. 
260. 

No  Length  of  Adverse  Occupation  op  Street  dedicated  to  the  public 
use  can  give  a  right  to  continue  an  encroachment  thereon,  so  as  to  prevent  its 
use  by  the  public  aa  a  highway:  Hoadley  v.  San  Fratudsco,  50  Cal.  265;  Peo- 
ple V.  Pope,  5  Id.  437;  CUy<if  Visalia  v.  Jacob,  65  Id.  434;  City  of  Philadelphia'* 
Appeal,  78  Pa.  St.  33. 

Liability  of  CrriEs  and  Towns  for  Injuries  Caused  by  Horses  Be- 
COMINO  Frightened  at  Objects  in  Streets.  — This  subject  is  discussed  at 
length  in  the  note  to  Morse  v.  Toivn  of  Pichmond,  98  Am.  Dec.  603-612. 


BusHBY  V.  New  York,  Lake   Erie,  and  West- 
ern Kailroad  Company. 

[107  New  Yoek,  874.1 

Master  cannot  Evade  Duty  to  his  Servant  by  Deleoateno  its  Per- 
formance to  another.  Whoever  does  the  act  by  the  appointment  or 
permission  of  the  master  represents,  and  as  to  that  act  is,  the  master. 

Employee  of  Railroad  may  Assume  that  Car  Delivered  to  Him  for 
use  is  safe,  and  that  the  needed  requirements  for  the  reception  of  a  load 
placed  upon  it  are  fit  for  the  purpose. 

Railroad  Company  must  Prepare  its  Cars,  whether  freight  or  passenger, 
for  the  use  to  which  they  are  consigned. 

For  Defective  Stakes  at  Sldb  of  Platform  Fbeiobt-car,  Railroai> 
Company  is  answerable  to  an  employee  injured  thereby,  though  the  use 
of  such  defective  stakes  may  be  attributed  to  the  negligence  of  another 
employee  or  of  a  shipper. 

Railroad  Company  Delegating  to  Shippers  Duty  of  Seeing  that  freight- 
cars  are  in  good  condition  and  safely  loaded  is  answerable  for  their  negli- 
gence to  one  of  its  employees  injured  thereby. 

Railroad  Company's  Duty  to  its  Employees  requires  it  to  use  diligence 
and  care,  not  only  in  furnishing  proper  and  reasonably  safe  appliances 
and  machinery,  and  skillful  co-employees,  but  also  in  making  and  pro- 
mulgating rules,  which,  if  faithfully  observed,  will  give  reasonable  pro- 
tection to  employees. 

Action  by  plaintiff  to  recover  damages  for  injuries  received 
while  acting  as  a  brakeman  in  the  employ  of  defendant.  At 
the  trial  plaintiff  was  nonsuited.  He  moved  for  a  new  trials 
which  was  granted  by  the  generaPterm  of  the  supreme  court. 
From  the  order  granting  a  new  trial  the  defendant  appealed. 

E.  C.  SpraguCy  for  the  appellant. 

A.  Hadden,  for  the  respondent. 


'        Nov.  1887.]    BusHBY  v.  New  York  etc.  R.  R.  Co.  845 

By  Court,  Danforth,  J.  The  defendant,  with  knowledge 
that  it  was  to  be  used  for  the  carriage  of  lumber  over  its  tracks 
and  by  its  servants,  delivered  at  its  station  in  Webster,  to  one 
Lewis,  a  platform  car.  To  the  sills  of  this  car  on  each  side, 
six  permanent  loops  or  iron  pockets  were  securely  bolted. 
These  were  purposed  and  intended  for  the  reception  of  stakes 
or  standards,  in  order  that  so  equipped  the  car  would  be 
adapted  for  carrying  a  loose  load  such  as  lumber  or  the  like. 
The  stakes  were  not  furnished  with  the  car.  Lewis  had  never 
before  loaded  a  car.  On  this  occasion  he  put  a  stake  in  each 
of  four  pockets  on  either  side  of  the  car  and  piled  on  and  ar- 
ranged the  lumber  under  the  direction  of  the  defendant's  sta- 
tion-agent, who  regulated  the  length  of  the  stakes.  The  car 
was  then  added  to  a  freight  train  on  which  the  plaintifif  was 
employed  as  brakeman,  and  in  the  performance  of  his  duty 
he  was  necessarily  upon  the  car  while  the  train  was  going 
around  a  curve  at  a  high  rate  of  speed.  At  that  moment  one 
of  the  stakes  broke,  and  by  reason  thereof,  he,  without  fault 
on  his  part,  was  thrown  with  the  lumber  upon  the  track,  and 
by  the  fall  severely  injured.  Upon  examination  it  was  found 
that  the  stake  in  question  was  made  "  of  very  poor  white  wood, 
— brash,  brittle  wood, — and  partially  decayed,"  "The  outside 
was  spongy  like  a  cork  where  it  had  been  ghaved  off  with  an 
ax."  "  It  was  a  dead  stick  and  had  lost  its  strength,  and  was 
punky."  "  It  had  broken  off  almost  even  with  the  top  of  the 
stake-hole."  It  did  not  appear  that  the  defendant  had  made 
any  rules  or  directions  as  to  the  inspection  of  such  cars,  or 
that  any  agent  of  the  company  except  as  above  mentioned 
superintended  the  putting  in  of  the  stakes.  The  station-mas- 
ter testified  that  he  had  "  no  printed  instructions  in  regard  to 
loading  the  cars,  or  anything  on  that  subject,"  or  in  regard  to 
seeing  how  the  stakes  were,  but  only  generally,  that  he  wanted 
to  see  that  everything  was  in  order;  he  had  no  special  instruc- 
tions. The  defendant,  however,  relies  upon  its  "system." 
That  was  to  let  the  shipper  load  and  stake,  and  as  to  inspec- 
tion, the  evidence  relied  upon  in  its  behalf  only  tends  to  show 
that  if,  in  the  general  performance  of  the  duties  of  their  em- 
ployment, the  station-agent  found  anything  out  of  the  way 
he  should  correct  it,  or  if  the  conductor  or  brakeman  saw  a 
defect  he  should  report  it  to  the  station-master.  No  special 
duty  was  imposed  on  either  in  regard  to  inspection,  nor  direc- 
tion given  as  to  its  manner.     Care  in  all  matters  was  enjoined 


846  BusHBY  V.  New  York  etc.  R.  R.  Co.     [New  York, 

upon  them  as  a  part  of  a  servant's  duty  to  his  employer,  — 
nothing  more. 

The  defendant  moved  for  a  nonsuit,  upon  the  grounds  that 
"  no  cause  of  action  has  been  established  by  the  evidence." 
"  That  no  negligence  on  the  part  of  the  defendant  has  been 
established  by  the  evidence  such  as  would  sustain  the  action." 
"That  whatever  negligence  may  have  been  shown,  if  any,  in 
this  case,  is  the  negligence  of  co-employees  of  the  defendant 
for  which  the  defendant  is  not  responsible."  "  That  the  plain- 
tiff's own  negligence  contributed  to  his  injury  in  such  a  way 
as  to  defeat  his  right  of  action."  The  plaintifif  asked  to  go  to 
the  jury  upon  the  questions,  —  1.  Whether  the  company  should 
not  have  made  and  promulgated  rules  in  respect  to  the  inspec- 
tion of  the  cars  that  were  to  transport  the  lumber  in  regard  to 
the  stakes;  2.  Whether  the  company  exercised  due  care  in 
furnishing  safe  and  suitable  machinery,  means,  and  appliances 
for  the  running  of  this  car;  3.  Whether  the  defendant  was 
guilty  of  any  negligence  which  contributed  to  the  injury  sus- 
tained by  the  plaintiff;  4.  Whether  the  plaintiff  himself  was 
guilty  of  any  fault  or  negligence  on  his  part  which  contributed 
to  the  injury.  The  court  expressed  the  opinion  that,  whether 
the  plaintiff  was  guilty  of  any  negligence  which  contributed 
to  the  injury  would  be  a  question  for  the  jury  if  the  case  were 
submitted  to  them,  but  refused  to  submit  any  question  to  the 
jury,  and  granted  the  motion  for  a  nonsuit,  and  the  plaintiff's 
counsel  excepted.  The  exceptions  were  ordered  to  be  heard 
at  the  general  term  in  the  first  instance.  Thafr  court  was  of 
opinion  that  the  case  was  one  for  a  jury,  and  directed  a  new 
trial.  Against  that  decision  the  defendant  appeals  and  makes 
the  following  points:  — 

1.  That  "the  stakes  were  not  appliances  or  machinery 
within  the  rule  which  requires  a  master  to  furnish  with  rea- 
sonable care  proper  and  adequate  machinery  or  other  appli- 
ances for  the  proposed  work";  but  on  the  contrary,  the  defend- 
ant says  they  "  were  appliances  furnished  and  employed  by 
the  shipper  in  loading  the  car  with  lumber  to  be  transported 
by  the  defendant." 

Personal  negligence  is  the  gist  of  the  action,  and  the  duties 
referred  to  in  the  rule  cited  are  those  of  the  master,  and  he 
cannot  evade  the  responsibilities  incident  thereto  by  delega- 
tion of  them  to  another.  Whoever  does  the  act  by  his  appoint- 
ment or  permission  represents,  and  as  to  that  act  is,  the 
master.      To  hold  otherwise    would    exempt   a  corporation 


Nov.  1887.]    BusHBY  v.  New  York  etc.  R.  R.  Co.  847 

from  all  liability,  and  we  must  at  the  outset  determine  to 
which  of  the  acts  the  one  complained  of  belongs.  Did  the 
stakes  form  a  part  of  the  car,  or  were  they  an  incident  to  the 
load  ?  It  was  proven  that  the  transportation  of  lumber  was  a 
considerable  part  of  defendant's  business.  We  may  take 
notice  of  the  fact  that  such  freight  is  common  to  all  railways. 
It  is  in  evidence,  also,  that  the  stakes  were  necessary  and  usual 
in  preparing  for  such  a  load.  The  car  actually  furnished  indi- 
cated by  the  iron  sockets  where  such  stakes  should  be  placed, 
and  were  arranged  and  prepared  for  them.  Had  the  car  when 
sent  to  the  shipper  been  equipped  with  stakes,  and  so  ready , 
for  use,  I  suppose  no  one  would  doubt  that  for  any  accident 
arising  from  the  unfit  material  of  which  they  were  made,  or 
from  imperfect  construction,  the  owner  would  be  liable.  If 
the  iron  socket  had  broken  from  a  known  defect  in  the  iron, 
or  from  a  known  imperfect  connection  with  the  car,  and  the 
plaintiff  from  that  cause  received  the  injury  from  which  he 
now  suffers,  or  if  the  sill  of  the  car  to  which  the  socket  was 
fastened  had  given  way  by  reason  of  inherent  weakness,  the 
result  would  be  the  same.  This  consequence  follows  because 
experience  has  shown  that  owing  to  the  rapid  speed  at  which 
the  train  travels,  and  the  violent  shocks  to  which  a  car  is  some- 
times exposed,  every  part  of  it  must  be  made  of  great  strength. 
This  rule  should  apply  to  any  appliance  which  is  made  part 
of  the  structure,  and  it  can  make  no  difference  that  it  may  be 
for  an  occasion  rather  than  constant  use.  The  question  relates 
to  the  condition  of  the  car  when  placed  in  the  hands  of  the 
servant,  and  its  delivery  to  him  raises  for  his  benefit  the  im- 
plication that  the  employer  has  used  suitable  care  and  fore- 
sight in  adopting  it  as  an  instrument  or  means  to  carry  on  its 
business.  Upon  this  he  might  rely  as  an  assurance,  not  only 
that  the  body  of  the  car  and  its  running  gear  were  safe,  but 
that  the  needed  requirement  for  the  reception  of  the  load 
placed  upon  it  was  also  fit  for  the  purpose.  The  platform 
and  the  stakes  constituted  the  bottom  and  the  sides  of  the  car, 
and  one  was  as  much  a  part  of  it  as  the  other. 

Moreover,  it  was  the  duty  of  the  defendant,  by  virtue  of  the 
statute  which  created  it  and  made  it  in  many  ways  as  the 
price  of  its  existence  a  public  servant,  not  only  to  "take" 
the  freight  offered,  and  regulate  *'  the  time  and  manner "  in 
which  it  should  be  transported,  but  also  furnish  sufficient 
accommodation  for  its  transportation  as  well  as  for  the  trans- 
portation of  passengers,  and  anticipating  the  variefy  of  cars 


848  BusHBY  V.  New  York  etc.  R,  R.  Co.     [New  York, 

which  that  duty  would  require,  the  statute  names  not  only 
passenger-cars,  baggage-cars,  freight-cars,  and  merchandise- 
cars,  but  also  '*  lumber-cars,"  eo  nomine  (Act  of  1850,  c.  140, 
sec.  38),  and  even  points  out  the  place  they  shall  occupy  in 
the  making  up  of  certain  trains.  This  provision  is  also  incor- 
porated into  the  Penal  Code,  section  422.  The  stakes  pertained 
to  the  "  manner,"  and  were  part  of  the  accommodations  fur- 
nished for  transportation  of  the  lumber,  —  they  were  not  part 
of  the  load,  nor  appurtenant  thereto.  They  belonged  to  the 
car  as  a  "  lumber-car."  With  stakes  the  car  in  question  was 
.fitted  to  carry  lumber,  and  was  a  lumber-car;  without  stakes 
it  was  not.  Of  course  the  stakes  served  to  secure  or  keep  the 
load  upon  the  car,  but  that  would  be  through  the  construction 
of  the  car,  and  not  through  any  application  of  the  stakes  to 
the  load.  The  platform  of  the  car  prevented  the  lumber  from 
falling  through;  the  stakes  of  the  car  were  designed  to  pre- 
vent it  from  falling  off.  The  stakes  were  not  a  temporary 
expedient,  as  a  rope  binding  the  load  or  a  block  at  the  wheels 
of  a  carriage.  To  remove  a  load  so  bound,  the  rope  must  be 
taken  away,  and  if  another  load  is  put  on  it,  it  must  be  rebound, 
and  60  with  the  block.  But  the  stakes,  like  the  bottom  or 
platform  of  the  car,  remain  after  the  load  is  removed,  and  the 
car,  without  alteration,  remains  ready  to  receive  another  load. 
The  duty,  therefore,  was  upon  the  master  to  fit  or  prepare  the 
car  for  the  use  to  which  it  was  consigned,  and  no  encourage- 
ment should  be  given  to  an  omission  to  perform  that  duty,  or 
to  negligence  or  failure  in  anj'  degree  in  respect  to  it.  On  the 
contrary,  a  just  public  policy,  as  well  as  that  of  the  statute, 
requires  a  court  to  hold  a  railroad  company  to  a  strict  observ- 
ance of  its  obligation. 

2.  The  next  proposition  of  the  defendant  is,  that  "  it  is  not 
necessary  in  this  case  to  decide  whether  the  stakes  in  question 
were  or  were  not  appliances  or  machinery  within  the  meaning 
of  the  rule  invoked  by  the  supreme  court  at  general  term " 
(and  to  which  I  have  above  referred),  "  for  the  reason  that  the 
system  under  which  they  were  furnished,  inspected,  and  em- 
ployed was  perfectly  well  known  to  the  plaintiff,  and  he  took 
the  risks  of  the  consequences  of  that  system." 

There  was  no  system  as  to  this  matter.  If  the  evidence 
shows  that  such  practices  had  obtained  before,  it  merely  shows 
that  the  defendant  chose  to  delegate  a  duty  to  the  shipper 
which  the  corporation  should  have  performed.  It  is  equally 
responsible  for  his  negligence;  his  negligence  is  its  negligence: 
Ihirkin  v.  Sharp,  88  N.  Y.  225. 


Nov.  1887.]     BusHBY  v.  New  York  etc.  R.  R.  Co.  849 

3.  But  the  defendant  says:  "Assuming  that  the  stake  in 
question  was  a  machine  or  apparatus,  within  the  meaning  of 
the  said  rule,  if  there  was  any  negligence  in  respect  thereto, 
it  was  the  negligence  either  of  the  shipper  of  the  lumber  or  on 
the  part  of  the  co-employees  of  the  plaintiff,  and  this  action 
cannot  be  maintained  for  such  negligence." 

If  I  am  right  in  the  views  already  expressed,  the  negligence 
was  corporate  negligence,  in  the  performance  of  a  duty  which 
it  could  delegate  only  at  its  own  peril. 

The  points  of  the  appellant  state  that  by  the  system  em- 
ployed, the  loading  was  to  be  done  by  the  shipper.  It  is  un- 
necessary to  say  what  the  defendant's  case  would  be  if  the 
defect  complained  of  had  been  in  that  act.  It  was  not.  It 
was  in  preparing  the  car  to  receive  and  hold  the  load.  The 
load  might  have  been  removed  altogether  without  remedying 
the  defect,  or  mathematically  adjusted  in  its  bearings  without 
preventing  the  consequences  for  which  compensation  is  now 
asked.     The  defect  was  in  the  car  as  a  "  lumber-car." 

4.  So  far  as  the  remaining  point  made  against  the  judgment 
denies  negligence  in  respect  to  the  quality  of  the  stakes,  it  is 
sufficient  to  refer  to  the  evidence  above  recited,  and  to  which 
there  was  no  answer  or  contradiction,  to  show  that  wood  was 
used  in  their  formation,  which  in  its  best  condition  was  soft 
and  feeble,  and  which,  in  fact,  was  unsound  and  decayed,  and 
this  was  obvious  to  any  one  upon  inspection.  But  it  is  also 
said  that,  "  under  the  system  adopted,  the  only  possible  negli- 
gence for  which  the  defendant  could  be  responsible  was  in  the 
inspection;  and  it  is  submitted  that  the  jury  should  not  have 
been  permitted  to  find  negligence  in  inspection  as  an  aflirma- 
tive  fact  upon  the  uncorroborated  statement  of  the  witness 
Eygabroat." 

This  witness  was  an  employee  of  the  defendant,  and  on  its 
train.  lie  saw  the  accident, — the  timber  falling  from  the  train, 
and  the  plaintiff  falling  with  it.  The  train  was  stopped,  the 
plaintiff  picked  up,  and  the  stake  examined.  He  says:  "I 
observed  that  one  of  the  stakes  was  broken.  It  was  of  very 
poor  wliite  wood, — brash,  brittle  wood, — and  partially  de- 
cayed.    It  was  broken  off  about  even  with  the  top  of  the  stake 

hole The  end  that  was  broken  off  looked  to  me  like  a 

stake  that  had  been  cut  out  of  a  dead  tree,  and  it  looked  as  if 
it  was  dozy  and  partially  decayed.  The  outside  of  it  was 
spongy  and  like  a  cork,  where  it  had  been  shaved  off  with  an 
ax."     There  is  other  evidence  to  the  same  effect  coming  from 

Ax.  St.  Rep.,  Vol.  I.— M 


850  BusHBY  V.  New  York  etc.  R.  R.  Co.     [New  York, 

the  defendant's  employees,  called  by  the  plaintiff,  as  well 
as  other  persons,  and  no  witness  called  by  the  defendant,  nor 
contradiction  of  plaintiff's  witnesses  at  any  point.  There  was 
a  large  amount  of  testimony  for  the  jury.  There  were  no  rules 
of  the  company  requiring  inspection,  nor  was  there  any  but 
casual  inspection  given  by  the  station-agent,  according  to  his 
custom,  of  the  stakes  and  load,  and  by  others  to  see  if  the 
load  was  rightly  placed. 

As  to  these  persons  the  question  would  not  be  whether  they 
believed  the  stake  sound,  but  whether  they  were  justified  in 
so  believing.  But  the  main  question  was,  whether  the  corpora- 
tion, by  any  of  its  agents,  failed  to  exercise  due  care  to  pre- 
vent injury  to  the  plaintiff  from  defects  in  the  car  furnished 
for  bis  use.  The  rule  as  to  its  duty  was  again  formulated  in 
Abel  V.  President  etc.  Delaware  and  Hudson  Canal  Company^ 
103  N.  Y.  581,  57  Am.  Rep.  773,  where  the  court  said,  in  sub- 
stance, that  "  the  law  imposes  upon  a  railroad  company  the 
duty  to  its  employees  of  diligence  and  care  not  only  in  fur- 
nishing proper  and  reasonably  safe  appliances  and  machinery, 
and  skillful  and  careful  co-employees,  but  also  of  making  and 
promulgating  rules  which,  if  faithfully  observed,  will  give  rea- 
sonable protection  to  the  employees." 

Under  each  branch  of  this  rule,  then,  there  was  a  question 
for  the  jury  in  this  case,  and  the  general  term  committed  no 
error  in  reversing  the  decision  of  the  trial  judge  and  granting 
a  new  trial.  As  the  appeal  of  the  defendant  has  prevented 
that,  the  order  of  the  general  term  should  be  aflBrmed,  and  in 
pursuance  of  the  stipulation  which  made  the  appeal  possible, 
the  plaintiff  must  have  judgment  absolute  in  his  favor. 

The  order  appealed  from  is  therefore  aflBrmed,  and  judg- 
ment absolute  ordered  for  the  plaintiff,  with  costs  in  all 
courts. 

Ordered  aflBrmed,  and  judgment  accordingly. 


Duties  of  Railway  Company  to  rra  Employees  which  cannot  be  evaded 
by  delegating  their  performance  to  agents  and  fellow-servants:  See  note  to 
Fisk  V.  C.  P.  R.  R.  Co.,  ante,  p.  22. 

Care  Which  Railway  Companies  must  Exercise  to  provide  tracks, 
bridges,  machinery,  and  other  appliances,  to  enable  their  employees  to  dis- 
charge their  duties  with  reasonable  safety:  St.  Lotus,  Ft.  S.,<Sc  W.  R.  R.  Co. 
V.  Irwin,  ante,  p.  266,  and  note. 

Rules  should  be  Made  and  Promulgated  by  Railway  Companies, 
which,  if  faithfully  observed,  will  give  reasonable  protection  to  their  em- 
ployees: Abel  V.  D.  6c  H.  Canal  Co.,  57  Am.  Rep.  773. 


Nov.  1887.]  People  v.  Sharp.  851 

People  v.  Sharp. 

[107  Nbw  Yoek,  427.] 

Provision  that  No  Person  shall  be  Compelled  to  be  Witness  against 
himself  in  a  criminal  case  does  not  inhibit  the  enactment  of  a  statute  re- 
quiring any  person  offending  against  the  statute  concerning  bribery  to 
attend  and  testify  as  a  witness  upon  any  trial,  hearing,  proceeding,  or 
investigation  against  any  other  person  so  offending,  but  declaring  that 
"  the  testimony  so  given  shall  not  be  used  in  any  prosecution  or  proceed- 
ing, civil  or  criminal,  against  the  person  so  testifying  ";  and  further  de- 
claring that  a  person  so  testifying  to  the  giving  of  a  bribe  which  has  been 
accepted,  "shall  not  thereafter  be  liable  to  indictment,  prosecution,  or 
punishment  for  that  bribery,  and  may  plead  or  prove  the  giving  of  testi- 
mony accordingly,  in  bar  of  such  indictment  or  prosecution." 

WiTNEsa  IS  NOT  Privilboed  from  Answering  because  his  answer  would 
expose  him  to  disgrace  and  infamy,  if  the  case  is  so  situated  that  he  can- 
not be  exposed  to  the  danger  of  conviction  and  punishment,  with  respect 
to  the  matters  disclosed  by  his  answer. 

State  Senate  has  Power  to  Inquire  into  Alleged  Abuses  of  Pubuo 
Power  and  the  corruption  of  public  officers,  and  to  delegate  the  duty  of 
making  such  inquiry  to  one  of  its  committees.  Such  committee  may 
compel  the  attendance  of  witnesses,  and  on  their  refusal  to  answer  may 
commit  them  for  contempt. 

Witness  does  not  Waive  his  Privilege,  nor  become  a  voluntary  witness, 
by  answering  criminating  questions  without  objection,  or  protest,  where 
nnder  the  statute  be  is  obliged  to  answer.  He  is  not  required  to  go 
through  the  formality  of  an  objection  which,  however  made,  would  be 
useless. 

Witness  Testifttno  before  Committeb  of  Legislature,  with  respect 
to  a  charge  of  bribery  in  which  he  is  implicated,  must  be  regarded  as 
testifying  against  another  person  so  offending,  upon  a  "trial,  hearing, 
proceeding,  or  investigation,"  within  the  meaning  of  section  79  of  the 
Penal  Code. 

Evidence.  —  An  attempt  to  bribe  one  person  should  not  be  allowed  to  be 
proved  on  a  prosecution  for  bribing  another  person  at  a  different  time. 

Evidence  of  Disposition  to  Commit  Crime  ought  not  to  be  admitted 
against  the  defendant  in  a  criminal  case. 

Evidence  of  Prior  Crime  can  have  no  legitimate  place  in  an  investigation 
as  to  whether  a  subsequent  crime  was  committed  by  the  same  person. 

Conclusion  or  Supposition  of  Witness  is  not  Evidence  against  another 
person. 

Evidence  of  Absence  or  Fugbt  of  Persons  wanted  as  witnesses  against 
a  person  being  prosecuted  for  crime  is  not  admissible  on  behalf  of  the 
prosecution,  where  the  evidence  already  received  tended  to  show  that 
such  absent  persons  were  qualified  from  actual  knowledge  to  give  evi- 
dence bearing  more  or  less  directly  upon  the  very  point  in  issae,  and 
were  seemingly  connected  with  the  defendant  in  the  act  charged. 

Evidence  of  Commission  of  Crime  Other  than  One  Charged. — The 
cases  on  this  subject  stated  and  analysed  by  Peckham,  J. 

Prosecution  against  Jacob  Sharp  for  the  bribery  of  a  mem> 
ber  of  the  common  council  of  the  citv  of  New  York.    The 


852  People  v.  Sharp.  [New  York, 

defendant  was  convicted  in  the  court  of  oyer  and  terminer  for 
that  city;  and  the  judgment  of  conviction  was  aflBrmed  on 
appeal  to  the  general  term. 

W.  Bourke  Cochran,  Albert  Stickney,  and  E.  W.  Paige,  for  the 
appellant. 

McKenzie  Semple,  De  Lancey  Nicoll,  and  George  F.  Comstockf 
for  the  respondent. 

By  Court,  Danforth,  J.  The  indictment  was  found  October 
19,  1886.  In  substance,  it  accuses  Jacob  Sharp  and  six  other 
persons  of  giving  and  offering,  and  causing  to  be  given  and 
offered,  to  one  Fullgraff,  a  member  of  the  common  council  of 
the  city  of  New  York,  twenty  thousand  dollars,  with  intent  to 
influence  him  in  respect  to  the  exercise  of  his  powers  and  func- 
tions as  such  member  of  the  common  council,  upon  the  appli- 
cation of  the  Broadway  Surface  Railway  Company  for  the 
consent  of  the  common  council  to  the  construction  of  a  street 
railway.  Sharp  was  tried  separately.  Direct  evidence  was 
given  from  which  a  jury  might  find  that  Fullgraff  had  in  fact 
been  bribed,  and  other  evidence  altogether  of  a  circumstantial 
character  and  by  no  means  conclusive,  but  sufficient,  as  the 
jury  have  said  by  their  verdict,  to  warrant  a  finding  that 
Sharp  was  concerned  in  the  commission  of  the  crime,  and 
therefore  guilty  of  the  offense  charged.  Exceptions  were  taken 
in  behalf  of  the  defendant  to  several  decisions  of  the  trial 
court  in  admitting  against  his  objection  certain  items  of  testi- 
mony, which  it  is  conceded  were  material,  and  without  which  it 
is  claimed  by  the  appellant  a  conviction  could  not  or  might 
not  have  been  obtained.  First:  among  others  the  counsel  for 
the  prosecution  proved  that  the  defendant  was  examined  as 
a  witness  before  a  committee  of  the  senate  of  this  state,  ap- 
pointed to  investigate,  among  other  things,  the  methods  of  the 
Broadway  Railway  Company  in  obtaining  such  consent,  and 
also  the  action  in  respect  thereto  of  the  board  of  aldermen  of 
said  city,  which  granted,  or  of  any  member  thereof  who  voted 
for,  the  same,  and  that  he  upon  that  occasion  gave  testimony 
which  the  learned  counsel  for  the  prosecution  claimed  to  be 
"irrefutable  evidence  of  his  participation  and  complicity  in 
the  commission  of  the  crime."  This  testimony  the  prosecutor 
offered  in  evidence.  It  was  conceded  by  the  prosecution  that 
at  the  time  he  testified  the  defendant  was  before  that  commit- 
tee under  the  operation  and  compulsion  of  a  subpoena  duly 


Nov.  1887.]  People  v.  Sharp.  853 

issued  by  committee,  and  that  the  testimony  he  gave  was  in 
response  to  questions  propounded  in  their  behalf.  Its  admis- 
sion on  the  trial  was  objected  to  on  the  ground  that  it  was 
given  under  privileged  circumstances;  that  the  defendant  was 
compelled  to  attend  and  testify,  and  that  evidence  thus  elicited 
was  not  competent  "  upon  the  trial  of  a  person  where  the  sub- 
ject under  inquiry  is  that  about  which  he  was  then  interro- 
gated." 

The  question  before  the  jury  was,  whether  the  defendant 
had  committed  the  crime  of  bribery,  as  alleged  in  the  indict- 
ment, and  as  that  oflense  is  declared  by  section  78  of  the  Penal 
Code  under  which  the  indictment  was  found.  This  section 
lorms  part  of  title  8,  which  relates  to  crimes  against  public 
justice,  and  of  chapter  1  of  that  title,  concerning  bribery  and 
corruption.  It  is  preceded  by  other  provisions  concerning 
bribery;  as,  (section  44)  of  an  executive  officer,  (section  66)  of 
members  of  the  legislature,  (section  71)  of  a  judicial  oflficer, 
(section  72)  of  such  an  officer  accepting  a  bribe,  (section  74) 
of  a  juror,  and  embracing  all  these  as  well  as  the  provisions 
of  section  78,  section  79  declares  that,  —  1.  A  person  offend- 
ing against  any  provision  of  any  foregoing  section  of  this  code, 
relating  to  bribery,  is  a  competent  witness  against  another 
person  so  offending,  and  may  be  compelled  to  attend  and  tes- 
tify upon  any  trial,  hearing,  proceeding,  or  investigation  in 
the  same  manner  as  any  other  person;  2.  "  But,"  it  declares, 
"  the  testimony  so  given  shall  not  be  used  in  any  prosecution 
or  proceeding,  civil  or  criminal,  against  the  person  so  testify- 
ing ";  3.  A  person  so  testifying  to  the  giving  of  a  bribe  which 
has  been  accepted  "  shall  not  thereafter  be  liable  to  indict- 
ment, prosecution,  or  punishment  for  that  bribery,  and  may 
plead  or  prove  the  giving  of  testimony  accordingly,  in  bar  of 
such  an  indictment  or  prosecution."  By  a  subsequent  section 
(section  712  of  the  Penal  Code),  these  provisions  are  so  modi- 
fied as  not  to  permit  such  evidence  being  proved  against  the 
witness  upon  any  charge  of  perjury  committed  on  such  exami- 
nation. 

The  first  question  upon  this  appeal  is  as  to  the  meaning  and 
spirit  of  the  statute  contained  in  this  section  (section  79). 
The  appellant  contends  that  by  it  the  disclosures  made  by 
him  before  the  senate  committee  were  privileged,  and  could 
not  be  used  against  him  on  the  trial  now  under  review;  and 
one  of  the  learned  counsel  for  the  people  concedes  that  this 
force  might  be  attributed  to  the  statute  if  it  were  wholly  a 


854  People  v.  Sharp.  [New  York, 

valid  enactment  (as  he  contends  it  was  not),  and  if  the  evi- 
dence given  before  the  committee  had  not  been  entirely  free 
and  voluntarily  (as  he  contends  it  was).  These  propositions 
lie  at  the  bottom  of  the  controversy. 

1.  Is  the  enactment  valid?  The  learned  counsel  for  the 
people  contrast  the  constitutional  provision,  "  that  no  person 
shall  be  compelled  in  any  criminal  case  to  be  a  witness 
against  himself"  (article  1,  section  6),  with  the  compulsory 
words  of  section  79,  already  quoted,  and  pronounce  one  to  be 
*'  the  direct  opposite  of  the  other,"  and,  as  we  understand  the 
argument,  it  is  that  the  constitutional  exemption  is  absolute 
and  complete,  permitting  the  witness  to  lock  up  the  secret  in 
his  own  heart,  and  does  not  permit  the  evidence  to  be  taken 
from  him  at  all;  that  this  right  is  infringed  by  the  provisions 
of  section  79,  and  that  it  is  therefore  invalid.  It  is,  I  think,  an 
answer  to  this  proposition  that  the  same  section  declares,  not 
only  that  the  testimony  given  by  the  witness  shall  not  be  used 
in  any  prosecution  or  proceeding,  criminal  or  civil,  against 
him,  but  that  the  very  fact  of  so  testifying  may  be  pleaded  in 
hsLT  of  an  indictment  or  prosecution  for  the  giving  of  a  bribe 
•which  has  been  accepted.  It  should  be  borne  in  mind  that  the 
isole  object  of  the  introduction  of  the  defendant's  testimony  was 
;to  prove  from  it  that  he  was  guilty  of  giving  the  bribe,  which, 
^6  the  evidence  tended  to  show,  Fullgrafif  accepted,  and  the 
giving  of  which  was  the  sole  accusation  against  the  defendant. 

If,  then,  the  case  is  within  the  terms  of  the  section,  as  upon 
this  point  it  is  assumed  to  be,  the  immunity  offered  by  it  dis- 
tinguishes the  statutory  provision  from  the  constitutional  in- 
hibition, inasmuch  as  it  indemnifies  or  protects  the  witness 
against  the  consequences  of  his  testimony.  To  that  eflfect  is 
the  decision  of  the  court  of  appeals  in  the  case  of  People  ex 
rel.  Hackley  v.  Kelly,  24  N.  Y.  74.  The  court  there  had  under 
review  an  order  adjudging  the  relator  Hackley  guilty  of  con- 
tempt in  refusing  to  answer  before  the  grand  jury  questions 
quite  similar  in  substance  to  those  propounded  to  Sharp  by 
the  senate  committee.  The  complaint  under  examination  was 
against  certain  aldermen  and  members  of  the  common  coun- 
cil of  the  city  of  New  York,  for  receiving  a  gift  of  money 
under  the  agreement  that  their  votes  should  be  influenced 
thereby  in  a  matter  pending  before  them  in  their  official  ca- 
pacity, and  Hackley  as  a  witness  was  asked  as  to  the  disposi- 
tion made  by  him  of  a  certain  pile  of  bills  received  from  one 
H.,  and  eaid  to  amount  to  fifty  thousand  dollars.     Hackley 


Nov.  1887.]  People  v.  Shakp.  855 

asserted  his  privilege  at  common  law  and  under  the  con- 
stitution, and  demurred  to  the  question.  The  court  of 
sessions  adjudged  him  guilty  of  contempt  for  refusing  to 
answer,  and  ordered  him  to  be  imprisoned.  The  supreme 
court  aflBrmed  the  order,  and  the  court  of  appeals  aflBrmed 
the  decision.  The  principal  question  discussed  by  this 
court  was,  whether  the  relator  could  lawfully  refuse  to 
answer  the  interrogatory,  and  in  reaching  its  conclusion 
the  court  examined  the  provisions  of  chapter  539  of  the 
laws  of  1853,  entitled  "An  act  to  amend  the  existing  law 
relating  to  bribery,"  and  also  chapter  446  of  the  laws  of 
1857,  amending  the  charter  of  the  city  of  New  York.  Both 
acts  relate  to  bribery.  We  shall  again  refer  to  them,  and  it 
is  sufficient  in  this  connection  to  say  that  each  act  contains 
provisions  compelling  the  attendance  and  testimony  of  wit- 
nesses, but  provides  full  protection  against  the  use  of  their 
testimony  in  any  proceeding,  civil  or  criminel,  against  the  per- 
son so  testifying.  The  object  of  these  provisions  was  said  to 
be  to  enable  the  public  to  avail  itself  of  the  testimony  of  a 
participator  in  the  offense,  and  to  enable  either  party  con- 
cerned in  its  commission  to  be  examined  as  a  witness  by  the 
grand  jury  or  public  officer  intrusted  with  the  prosecution, 
and  the  court  held  that  the  relator  was  not  privileged  by  the 
constitution,  inasmuch  as  he  was  protected  by  the  statute 
against  the  use  of  such  testimony  on  his  own  trial. 

The  learned  counsel  for  the  people  also  argues  that  the 
statutory  protection  afforded  by  section  79  does  not  go  far 
enough;  that  the  indemnity  it  offers  to  the  accused  witness  is 
partial,  and  not  complete;  that  while  it  may  save  him  from 
the  penitentiary  by  excluding  his  evidence,  it  does  not  prevent 
the  infamy  and  disgrace  of  its  exposure.  This  argument  is 
also  met  by  the  opinion  in  the  Hackley  case,  supra.  It  was 
there  argued  for  the  relator  that  he  was  not  wholly  protected; 
that  his  testimony  might  disclose  facts  and  circumstances 
which,  being  thus  ascertained,  might  be  proved  against  him 
by  other  testimony  than  his  sworn  evidence.  But  the  answer 
of  the  court  covered,  not  only  that  supposed  case,  but  the  ob- 
jection that  the  disgrace  of  exposure  would  still  remain, 
although  the  evidence  was  not  used.  "  That,"  said  the  court, 
"is  the  misfortune  of  his  condition,  and  not  any  want  of 
humanity  in  the  law."  '*  If  a  witness,"  said  Judge  Denio,  24 
N.  Y.  83,  *'  object  to  a  question  on  the  ground  that  an  answer 
would  criminate  himself,  ho  must  allege  in  substance  that  his 


856  People  v.  Sharp.  [New  York, 

answer,  if  repeated  aa  his  admission  on  his  own  trial,  would 
tend  to  prove  him  guilty  of  a  criminal  ofifense";  adding,  "If 
the  case  is  so  situated  that  a  repetition  of  it  on  a  prosecution 
against  him  is  impossible,  as  where  it  is  forbidden  by  a  positive 
statute,  I  have  seen  no  authority  which  holds  or  intimatea 
that  the  witness  is  privileged."  The  conclusion  of  the  court 
was,  that  the  relator  was  not  exempt  from  testifying,  and  it 
follows  from  the  decision  then  rendered  that  the  provision  of 
the  code,  which  embodies  the  same  conditions  as  those  then 
under  consideration,  is  in  no  sense  repugnant  to  the  consti- 
tution. 

2.  Was  the  testimony  of  Sharp  given  of  his  own  will,  or  by 
compulsion?  He  would,  as  the  prosecution  concedes,  have 
testified  against  himself,  if,  as  a  witness  on  his  trial,  he  had 
sworn  as  he  did  before  the  committee;  but  he  was  not  sworn 
upon  his  trial,  and  this  fact,  they  say,  left  him  to  the  opera- 
tion of  the  common-law  rule,  when  his  admissions  made  else- 
where and  in  another  place  were  sought  to  be  proved  by  other 
witnesses.  To  reach  this  conclusion,  it  is  argued  with  great 
earnestness  by  one  of  the  learned  counsel  for  the  people, 
"  that  the  resolution  of  the  senate  and  the  inquisition  of  the 
committee  were  illegal  and  void  proceedings,  having  no  sig- 
nificance or  force  in  the  judgment  of  the  law."  "To  say," 
continues  the  counsel,  "  that  Mr.  Sharp  was  a  witness  implies 
a  court  or  magistrate  authorized  to  administer  the  oath  and 
take  the  evidence";  and  his  claim  is,  that  Sharp  was  "  under 
no  compulsion  of  law  to  be  present  at  this  inquisition,  to  take 
an  oath,  or  to  testify."  In  the  view  of  the  learned  counsel  for 
the  prosecution,  and  as  characterized  by  him,  "  the  sittings 
of  the  committee  were  merely  meetings  of  private  persons, 
among  whom  was  Mr.  Sharp."  "  There  were,"  he  says,  "  con- 
versational questions  and  answers  in  which  he.  Sharp,  took  a 
part  by  answering  interrogations  addressed  to  him";  and  tho 
contention  of  the  learned  counsel  follows,  "  that  Sharp's  state- 
ments on  that  occasion  may  be  used  in  any  proceeding  to 
which  he  is  a  party."  If  the  premises  were  true,  this  con- 
struction might  in  ordinary  cases  follow.  But  if  they  are 
correct,  the  courts  below  seem  to  have  misconceived  the  situ- 
ation in  which  Sharp  was  placed,  for  we  cannot  find  in  the 
voluminous  record  before  us  any  suggestion  that  the  senate 
had  not  full  power  to  tak^  cognizance  of,  and  to  inquire 
through  its  committee  into,  the  alleged  abuses  of  public  power 
and  the  corruption  of  public  officers,  nor  that  such  proceed- 


Nov.  1887.]  People  v.  Sharp.  857 

ings  in  the  present  case,  having  in  view  the  possible  necessity 
of  an  alteration  in  the  existing  law,  were  not  in  every  respect 
valid  and  legal.  Nor  are  we  left  to  this  negative  evidence 
that  such  question  was  not  raised  upon  the  trial.  It  appears 
by  the  concession  there  made  and  already  quoted,  that  upon 
objection  being  made  to  the  introduction  of  Sharp's  testimony, 
on  the  ground  that  his  statements  before  the  committee  were 
privileged,  made  under  compulsion  of  a  subpoena  and  the  con- 
straint of  an  oath  duly  administered  by  the  committee,  who 
confined  his  evidence  t«  such  questions  as  the  committee 
chose  to  ask,  the  prosecution  not  only  made  the  admission 
already  set  out,  but  also  required  the  resolution  under  which 
the  committee  assumed  to  act  to  be  put  in  evidence,  and  so 
connected  with  the  admission.  That  being  done,  the  prose- 
cutiou  went  into  evidence  of  the  acts  of  Sharp,  to  show  that 
he  waived  his  privilege  before  the  committee  by  not  asserting 
it;  in  no  manner  questioning  the  due  appointment  of  the  com- 
mittee nor  its  powers.  In  view  of  these  facts,  it  is  too  late  to 
raise  the  question  here.  Moreover,  the  decision  in  the  case  of 
People  ex  rel.  McDonald  v.  Keeler,  99  N.  Y.  463,  52  Am.  Rep. 
49,  establishes,  so  far  as  this  court  is  concerned,  that  the  sen- 
ate had  constitutional  power  to  pass  the  resolution,  and  that 
its  committee  was  authorized  to  carry  it  into  effect.  In  that 
case  it  appeared  that  charges  of  fraud  and  irregularity  had 
been  made  by  the  public  press  and  otherwise  against  the  com- 
missioners of  public  works  in  the  city  of  New  York,  and  the 
senate,  by  resolution,  directed  its  committee  "  to  investigate  " 
that  department,  with  power  to  send  for  persons  and  papers, 
and  report  the  result  of  its  investigation  and  its  recommenda- 
tions concerning  the  same  to  the  senate.  The  relator  was 
summoned  and  appeared  and  testified,  but  refusing  to  answer 
certain  questions,  was,  on  the  report  of  the  committee,  com- 
mitted by  the  senate  for  contempt.  Upon  habeas  corpus,  ques- 
tions as  to  the  constitutional  power  of  the  senate  to  order  the 
investigation  and  legality  of  its  proceedings  were  distinctly 
presented  and  afiirmed. 

The  case  on  which  the  learned  counsel  for  the  people  now 
places  his  argument,  Kilboum  v.  Thompson,  103  U.  S.  176, 
was  cited  in  favor  of  the  prisoner,  fully  commented  upon  by 
the  court,  and  shown  to  have  no  application.  The  action  of 
Congress  reviewed  in  that  case  was  in  substance  a  creditor's 
bill,  or  effort  to  impeach  a  transaction  already  closed  between 
the  United  States  and  one  of  its  debtors.    The  supreme  court 


858  People  v.  Sharp.  [New  York, 

of  the  United  States  held  that  as  to  it  Congress  had  no  judicial 
power,  and  exceeded  its  authority  in  the  attempted  investiga- 
tion. The  McDonald  case,  on  the  contrary,  reviewed  a  pro- 
ceeding which  was  necessary  or  appropriate  to  enable  the 
legislature  to  perform  its  functions,  and  it  was  held  to  be  no 
objection  that  it  partook  in  some  degree  of  a  judicial  charac- 
ter. That  case  brought  up  proceedings  on  all  substantial 
points,  like  the  resolutions  which  were  at  the  bottom  of  the 
inquiry  before  the  senate  committee  in  this  case,  and  its  de- 
cision makes  any  further  discussion  of  their  validity  quite 
unnecessary.  It  follows  that  the  investigation  before  the 
committee  was  not  beyond  its  powers,  nor  were  the  resolu- 
tions under  which  they  acted  void,  or  without  legal  signifi- 
cance or  force.  As,  therefore,  it  cannot  be  said  that  the 
committee  was  without  power  to  compel  the  witness  and 
require  his  testimony,  the  respondent  must  find  elsewhere 
reasons,  if  there  are  any,  in  support  of  the  proposition  that 
the  evidence  was  by  a  willing  witness.  To  that  end  it  is  fur- 
ther said  in  behalf  of  the  people  that  Sharp,  by  not  asserting 
his  privilege  before  the  committee,  waived  it.  But  if  the  case 
comes  within  the  purview  of  section  79,  supra,  of  that  act,  the 
senate  subpoena  and  the  resolution  of  the  senate  were  com- 
pulsory, and  it  was  not  necessary  for  the  protection  of  the 
witness  that  he  should  either  by  deed  or  word  set  either  at 
defiance,  or  refuse  to  obey  the  summons,  or  refuse  to  answer 
the  questions  of  the  committee.  It  is  enough  if  he  was  obliged 
by  law  to  answer  the  inquiry,  and  he  could  not  be  required,  in 
order  to  gain  the  indemnity  which  the  same  law  afibrded,  to 
go  through  the  formality  of  an  objection  or  protest  which, 
however  made,  would  be  useless.  In  the  Hackley  case,  supra, 
the  witness  did  plead  his  privilege,  but  it  was  of  no  avail,  be- 
cause he  was  obliged  by  law  to  answer  the  inquiries,  and  the 
law  was  held  imperative  and  suflficient,  although  the  case  was 
one  within  the  very  terms  of  the  constitution,  because  by  the 
same  law  he  was  protected  against  the  consequences  of  his 
admissions.  Whether  he  asserted  his  privilege,  or  whether 
he  was  silent  and  submissive  to  the  laws,  could  make  no  dif- 
ference. The  legislature,  for  reasons  of  public  interest,  re- 
quired a  discovery  of  the  whole  truth  as  to  matters  involved 
in  their  inquiry.  And  one  answering  in  compliance  with 
their  command  cannot  be  deemed  a  willing  or  consenting  per- 
son within  the  meaning  of  the  maxim,  Volenti  nonfit  injuria, 
on  which  respondent  relies.     A  person  who  yields  from  the 


Nov.  1887.]  People  v.  Sharp.  859 

necessity  of  obedience  cannot  be  said  to  have  the  power  of 
acting  by  his  own  choice.  And  where  the  law  says  he  shall 
be  compelled  to  attend,  and  shall  be  compelled  to  testify,  ac- 
quiescence is  not  election,  and  he  is  not  one  of  whom  it  can 
be  said  he  receives  no  injury  from  that  to  which  he  willingly 
and  knowingly  agrees  and  consents.  There  can  be  no  vo- 
lition where  there  is  neither  power  to  refuse  nor  opportu- 
nity to  elect.  Under  such  circumstances,  the  witness  must 
be  deemed  to  speak  for  the  safety  of  his  person,  and  in 
view  of  the  indemnity  which  the  law  promises.  A  man  is 
none  the  less  robbed  because,  yieldhig  to  irresistible  power, 
he  makes  no  resistance;  and  a  witness  who  gives  up  his 
secret  at  the  command  of  the  law  is  as  much  under  com- 
pulsion as  if  he  ventured  on  the  punishment  that  would  fol- 
low on  his  refusing  to  disclose  it.  In  the  Hackley  case  there 
was  the  plea  of  privilege,  but  it  availed  nothing  because  the 
law  required  an  answer.  The  position  of  the  witness  was  in 
no  respect  changed  by  the  plea.  In  the  Keeler  case,  supra^ 
there  was  refusal  to  answer  under  the  advice  of  counsel,  but 
it  availed  nothing.  To  refuse  to  attend  the  committee  or  tes- 
tify would,  moreover,  have  rendered  the  witness  guilty  of  a 
misdemeanor:  Penal  Code,  sees.  68,  69.  It  seems  to  us  that 
the  evidence  of  Sharp  before  the  committee  was  given  under 
the  penalty  of  commitment  and  imprisonment  for  contempt, 
and  consequently  that  it  was  obtained  from  him  by  compul- 
sion. 

So  far,  we  have  assumed  the  case  to  bo  within  the  provisions 
of  section  79  of  the  Penal  Code,  supra,  and  we  come  now  to 
the  contention  on  the  part  of  the  people  that  the  section  (79) 
does  not  embrace  such  investigation,  but,  on  the  contrary,  is 
to  be  limited  to  such  testimony  only  as  might  be  given  upon 
"trial,  hearing,  proceeding,  or  investigation,  in  the  course  of  a 
criminal  prosecution,  and  that  it  has  no  application  to  such 
testimony  as  might  be  given  in  the  course  of  legislative  pro- 
ceedings or  investigations."  It  was  held  in  People  v.  Keeler, 
Bupray  that  the  senate  might  proceed  in  its  own  way  in  the 
collection  of  such  information  us  might  seem  important  in  the 
proper  discharge  of  its  functions;  and  whenever  it  was  deemed 
necessary  to  examine  witnesses,  that  the  power  and  authority 
to  do  so  might  properly  be  referred  to  a  committee  with  such 
powers  as  should  appear  to  be  necessary  or  expedient  in  the 
case;  and  that,  notwithstanding  the  vesting  of  judicial  power 
in  the  courts,  certain  powers,  in  their  nature  judicial,  belong 


860  People  r.  Sharp.  [New  York^ 

to  the  legislature,  and  might  be  delegated  to  a  committee 
authorized  to  take  testimony  and  summon  witnesses,  and  that 
a  refusal  to  appear  and  testify  before  such  committee,  or  to 
produce  books  or  papers,  would  be  a  contempt  of  the  house. 
It  was  also  held  that  when  institutions  or  public  officers  were 
ordered  to  be  investigated,  it  is  to  be  presumed  that  such  an 
investigation  was  with  a  view  to  some  legislative  action  in 
regard  to  them;  and  moreover,  that  the  terms  of  the  resolution 
directing  it  may  be  looked  at  to  ascertain  the  legislative  intent. 
The  resolutions  which  led  to  the  examination  of  Sharp  were 
passed  January  26,  1886.  They  were  preceded  by  a  reference 
to  the  provisions  of  the  constitution  and  statutes  relating  to 
street  railroads,  and  the  prohibition  against  such  road  without 
"  the  consent  thereto  of  the  local  authorities  having  control  of 
the  street  upon  which  it  was  proposed  to  construct  the  road," 
and  a  reference  to  the  charges  that  consent  to  the  railroad 
upon  Broadway  "  was  obtained  through  fraud,  and  by  and 
through  corrupt  influence  and  bribery  of  such  authorities," 
viz.,  the  aldermen  of  the  city  of  New  York,  and  a  recital  that 
a  strong  and  reputable  sentiment  in  that  city  demands  at  the 
hands  of  the  senate  "  an  investigation  of  the  methods  in  ob- 
taining such  consent."  It  was  for  these  reasons  resolved  by 
the  senate  that  its  railroad  committee  be  authorized  "  to  inves- 
tigate fully  all  matters  relating  to  the  methods  of  the  Broad- 
way Surface  Railroad  Company,  or  of  any  other  person  or 
corporation  relating  to  or  in  obtaining  such  consent,  and  also 
to  investigate  fully  the  action  of  the  board  of  aldermen  of  said 
city,  which  granted  or  gave  the  same  in  respect  thereto,  or  of 
any  member  thereof  who  voted  for  the  same  in  respect  thereto." 
The  committee  were  given  full  power  to  prosecute  such  in- 
vestigation in  such  directions  as  it  thought  necessary  as  to  all 
matters  relating  to  the  granting  of  said  consent,  and  the  in- 
ducements which  led  thereto,  with  full  power  to  send  for  per- 
sons and  papers,  and  to  employ  counsel  and  other  assistants 
in  the  work  before  them,  and  the  sergeant-at-arms  was  directed 
to  attend  the  sittings  of  the  committee,  serve  subpoenas,  and 
do  such  other  things  as  it  directed.  A  report  was  required,^ 
with  recommendations,  and  particularly  as  to  the  policy  of  an 
amendment  to  the  constitution,  vesting  the  power  to  grant 
Buch  consent  in  some  other  authority  than  as  at  present  pro- 
vided." It  is  apparent  from  their  terms  that  the  resolution, 
which  permitted  the  examination  of  Sharp  involved  an  inquiry 
which  the  legislature  had  a  right  to  make,  and  which,  in  view 


Nov.  1887.]  People  v.  Shabp.  861 

of  the  recitals  in  the  resolution,  it  was  its  duty  to  make,  in 
order  that  the  abuses  which  were  disclosed  might  be  cured  by 
further  action  by  the  legislature  or  by  the  people.  The  inquiry 
was  judicial  in  its  nature,  was  to  be  pursued  for  a  lawful  end, 
and  by  means  as  comprehensive  and  suflBcient  as  could  be  pro- 
vided. The  occasion  and  the  action  of  the  legislature  meet 
every  suggestion  of  the  court  in  the  case  last  cited  as  to  the 
expression  of  legislative  intent,  and  the  imposition  of  the  duty 
of  obedience  upon  all  persons  who  should  be  summoned  to 
make,  by  their  testimony,  the  investigation  serve  the  ends  of 
public  justice. 

"We  have  seen  that  there  is  no  conflict  between  the  will  of 
the  legislature,  as  expressed  in  section  79,  and  the  constitution, 
and  we  are  now  to  construe  that  section  in  accordance  with 
the  legislative  intent.  In  its  exposition  full  cfifect  is  to  be 
given  to  that  intention,  and  if  possible,  full  force  and  validity 
to  every  word,  so  that  no  part  be  annulled  or  rendered  nuga- 
tory. It  cannot  be  doubted  that  the  case  is  brought  literally 
within  the  language  of  the  section  (section  79,  supra).  Sharp 
was  a  person  ofiending  against  one  of  the  specific  provisions 
of  the  code  in  relation  to  bribery.  Ho  was  accused  and  has 
been  convicted  of  giving  a  bribe.  He  was,  therefore,  qualified 
under  that  section  (79)  as  a  "  competent  witness."  Against 
whom?  Why,  against  another  person  "so  offending,"  that  is, 
another  person  offending  against  any  of  those  provisions  of  the 
code  "relating  to  bribery."  He  was,  in  fact,  a  witness  before 
the  committee  in  relation  to  bribery.  Was  he  a  witness  against 
another  person?  The  resolution  recites,  as  the  immediate  cause 
of  the  action  of  the  senate,  the  alleged  bribery  of  certain  "  local 
authorities  consenting  to  the  railway,"  and  then  to  make  the 
accusation  specific  as  to  the  person,  says  "the  local  authority" 
referred  to  as  the  authority  which  consented  "  was  the  alder- 
men of  said  city."    There  was,  then,  another  person  offending. 

Sharp  was,  by  the  statute,  made  competent  as  a  witness  as 
to  the  subject-matter  against  him.  The  legislature  may  bo 
presumed  to  know  that  such  a  person,  although  made  by  law 
competent  as  a  witness  against  that  other  jxireon,  would  even 
then  testify,  if  at  all,  voluntarily,  and  to  his  own  crime,  and 
therefore  would  not  bo  likely  to  testify  at  all;  and  so  they  not 
only  make  him  a  competent  witness,  but  add,  "  and  [he]  may 
bo  compelled  to  attend  and  testify,"  meaning,  of  course,  to 
give  evidence  against  that  other  person,  including,  at  any 
rate,  the  other  party  to  the  transaction.    If,  as  in  the  case 


862  People  v.  Sharp.  [New  York, 

before  us,  the  "  person  offending  "  is  the  giver  of  the  bribe, 
then  he  might  be  compelled  to  testify  against  the  receiver  of 
the  bribe.  Where?  Why,  upon  any  trial,  upon  any  hearing, 
upon  any  proceeding,  or  "  upon  any  investigation."  It  follows 
that  if  we  adhere  to  the  ordinary  and  natural  meaning  of 
these  words,  and  apply  them  to  the  case  in  hand,  we  shall  find 
neither  inconsistency  nor  incongruity,  but  complete  adapta- 
tion. The  senate  was  dealing  with  the  charge  made  against 
the  aldermen  of  the  city,  that  their  consent  was  obtained  by 
and  through  certain  methods,  and  among  others,  bribery;  it 
admitted  that  an  investigation  of  those  methods  was  de- 
manded; therefore  the  senate  authorized  its  committee  "to 
fully  investigate  "  all  matters  relating  to  these  methods,  and 
also  to  investigate  fully,  not  only  the  action  of  the  board  of 
aldermen  which  granted  or  gave  such  consent,  but  also  that 
of  any  member  of  the  board,  with  full  power  and  authority 
"  to  prosecute  its  investigations  in  any  and  all  directions  in  its 
judgment  necessary  to  a  full  and  complete  report  to  the  senate 
as  to  all  matters  relating  to  the  granting  of  such  consent,  and 
the  influences  and  inducements  which  led  thereto,"  and  gave 
to  the  committee  full  power  and  authority  to  send  for  persons 
and  papers,  to  hold  its  sessions  in  New  York,  and  conduct  its 
"  investigations  "  there.  Clearly  there  is  to  be  an  investiga- 
tion, in  the  language  of  section  79,  of  a  charge  of  bribery  of  a 
public  officer,  with  an  intent  to  influence  him  in  the  exercise 
of  his  powers.  The  committee  were  to  ascertain,  through  tes- 
tifying persons  and  papers,  whether  the  charge  was  well  or  ill 
founded.  Whoever  gave  evidence  before  them  attended  upon 
an  "investigation"  and  testified;  and  unless  we  greatly  con- 
fine and  limit  the  meaning  which  the  words  used  by  the  legis- 
lature usually  express,  it  is  impossible  to  say  that  the  case  is 
not  within  the  statute.  It  is  claimed,  however,  by  the  learned 
counsel  for  the  people,  that  the  "  investigation,  in  the  mind 
of  the  legislature,  did  not  include  an  investigation  directed  by 
itself  and  conducted  through  its  committee,  but  only  an  'in- 
vestigation '  in  the  course  of  a  criminal  prosecution,"  and  upon 
that  construction  the  judgment  of  the  court  below  was  put. 
It  is  no  doubt  the  duty  of  the  court  to  restrain  the  operation 
of  a  statute  within  narrower  limits  than  its  words  import,  if 
it  is  satisfied  that,  giving  to  them  their  literal  meaning,  the 
statute  would  be  extended  to  cases  which  the  legislature  never 
intended  to  include.  But  this  can  only  be  done  where  a  rea- 
6on  for  some  limitation  is  found,  either  in  the  occasion  for 


Nov.  1887.]  People  v.  Sharp.  863 

which  they  are  used,  or  in  the  context.  That  is  not  the  case 
here.  In  the  first  place,  the  construction  contended  for  in 
behalf  of  the  people  is  contrary  to  the  plain  and  ordinary 
meaning  of  the  words  used.  "  Any  investigation  "  would  in- 
clude all  investigations  in  the  conduct  of  which  persons  may 
be  called  by  authority  as  witnesses  to  testify  under  oath  con- 
cerning any  matter.  Therefore  it  must  include,  if  taken  liter- 
ally, the  action  of  a  legislative  committee  according  to  the 
direction  given  it,  and  acting  with  authority  to  subpoena  wit- 
nesses, and  enforce  their  attendance,  and  examine  them  upon 
oath.  Nor  is  it  any  answer  to  this  conclusion  to  say  that 
only  a  judicial  investigation  was  intended.  If  we  are  right 
in  the  views  above  expressed,  the  legislature  possessed,  and 
might  delegate  to  its  committee,  any  power  short  of  final  judi- 
cial action  which  they  thought  necessary  in  any  particular 
case;  and  although  the  investigation  was  only  for  the  collec- 
tion of  information  required  for  the  proper  performance  by 
the  legislature  of  its  own  functions,  it  might,  nevertheless,  be 
a  proceeding  requiring  witnesses,  and  power  to  compel  their 
attendance.  It  is,  moreover,  assumed  and  claimed  by  the 
prosecution  that  the  privilege  of  a  witness  to  be  exempt  from 
a  compulsory  disclosure  of  his  own  criminal  conduct  is  the 
same  in  such  an  examination  as  when  sworn  m  court.  If 
that  be  so,  it  affords  a  suflBcient  reason  for  including  a  legis- 
lative investigation  among  the  proceedings  in  which  persons 
otherwise  privileged  should  be  compelled  to  testify.  Public 
policy  would  often  require  the  fullest  disclosure;  and  the  very 
case  before  the  legislature  was  an  instance  in  which  that 
policy  might  be  defeated,  if  the  utmost  latitude  was  not  per- 
mitted, and  the  greatest  freedom  of  examination,  to  ascertain 
the  truth  of  the  public  charge  that  a  great  and  valuable  fran- 
chise had  been  obtained  through  corruption  and  bribery  of 
public  officials. 

In  In  re  Falvey,  7  Wis.  630,  it  appeared  that,  in  pursuance 
of  a  resolution  of  the  legislature  of  Wisconsin,  not  unlike  that 
before  us,  having  for  its  object  the  investigation  of  frauds, 
bribery,  and  corrupt  acts,  charged  to  have  been  perpetrated  by 
inducing  the  legislature  to  grant  certain  lands,  and  the  investi- 
gation of  cases  of  alleged  bribery  on  the  part  of  certain  rail- 
road officials  and  others  in  procuring  the  grant,  a  committee 
was  appointed  with  powers  similar  to  those  conferred  by  the 
resolution  before  us.  One  Falvey  was  subpoenaed  before  the 
committee,  but  refused  to  answer,  and  on  habeas  corptw  it  was 


864  People  v.  Sharp.  [New  York, 

adjudged  that  he  could  claim  no  privilege,  and  his  refusal  to 
answer  was  a  contempt,  because  the  law  of  that  state  provided 
that  no  person  so  examined  and  testifying  before  a  committee 
BO  appointed  should  be  held  to  answer  in  any  court  of  justice, 
or  be  subject  to  any  penalty  or  forfeiture  for  any  fact  or  act 
touching  which  he  should  be  required  to  testify.  It  was  held 
that  this  language  furnished  a  full  protection.  No  such  pro- 
vision relating  to  the  offense  of  bribery  is  found  in  any  stat- 
ute of  this  state  prior  to  1869  (Laws  1869,  c.  742),  but  the 
legislation  on  the  subject  extended  from  time  to  time  until 
consolidated  and  enlarged  in  the  Penal  Code.  The  provisions 
of  the  Revised  Laws  (vol.  2,  p.  191,  sec.  3)  were  made  part  of 
the  Revised  Statutes  (R.  S.,  vol.  2,  tit.  4,  pt.  4,  c.  1,  art.  2,  sec. 
9,  p.  682),  and  related  to  the  bribery  of  certain  state  oflficers, 
judges  of  any  court  of  record,  and  judicial  oflScers.  Section 
10  of  the  same  article  related  to  the  acceptance  of  a  bribe  by 
either  of  these  oflBcers;  section  11  related  to  the  acceptance 
of  bribes  by  jurors,  arbitrators,  and  referees,  and  section  11 
to  persons  who  should  by  gifts  corrupt  or  bribe  them.  In 
1853  (Laws  1853,  c.  217,  sec.  14),  by  the  act  amending  the 
charter  of  the  city  of  New  York,  and  above  cited,  a  penalty 
was  imposed  for  bribing  any  member  of  the  common  council 
or  other  oflBcers  of  that  corporation,  and  it  was  provided  that 
every  person  offending  in  that  respect  should  be  a  competent 
witness  against  any  other  person  offending  in  the  same  trans- 
action, and  might  be  compelled  to  appear  and  give  evidence 
before  any  grand  jury  or  in  any  court,  in  the  same  manner  as 
other  persons,  but  declared  that  "the  testimony  so  given  should 
not  be  used  in  any  prosecution,  civil  or  criminal,  against  the 
person  so  testifying."  In  the  same  year  (Laws  1853,  c.  539), 
the  provisions  of  the  Revised  Statutes  (ante)  were  amended 
and  added  to;  other  officials  were  enumerated  as  the  subjects 
of  bribery,  and  among  them  "  any  member  of  the  common 
council  or  corporation  of  any  city,"  and  any  person  offending 
against  either  of  the  provisions  of  the  preceding  sections,  was 
declared  to  be  a  competent  witness  against  any  other  person 
60  offending,  and  might  be  compelled  to  appear  and  give  evi- 
dence before  any  magistrate  or  grand  jury,  or  in  any  court, 
in  the  same  manner  as  other  persons;  but  it  provided  that  tes- 
timony so  given  should  not  be  used  in  any  prosecution  or  pro- 
ceeding, civil  or  criminal,  against  the  person  so  testifying." 

The  act  of  1857  (section  52,  supra)  is  confined  to  the  city  of 
New  York,  and  relates  only  to  bribes  offered  or  given  to  mem- 


Nov.  1887.]  People  v.  Sharp.  865 

bers  of  its  common  council,  or  oflScers  of  the  corporation, 
makes  every  person  ofiFending  against  any  of  the  provisions  of 
that  section  a  competent  witness  against  any  other  person 
ofifending  in  the  same  transaction,  and  closes  with  an  absolu- 
tion or  saving  clause  similar  to  that  of  the  act  of  1853,  last 
cited. 

In  1869  (Laws  1869,  c.  742)  an  act  was  framed  for  "the 
more  effectual  suppression  and  punishment  of  bribery."  It 
authorized  certain  actions  in  favor  of  parties  injured,  and  by 
section  8  provided  as  follows:  "  No  person  shall  be  excused 
from  testifying  on  any  examination  or  trial  for  any  offense 
specified  in  this  act,  or  the  trial  of  any  action  authorized  by 
this  act,  or  on  any  investigation  by  any  committee  of  the 
legislature,  or  either  house  thereof,  into  the  conduct  of  any 
member  thereof,  or  on  the  trial  of  any  civil  action  for  slander 
or  libel,  or  any  criminal  action  for  libel,  where  such  alleged 
slander  or  libel  imputes  bribery,  or  any  offense  mentioned  in 
this  act,  or  on  the  trial  or  examination  of  any  charge  of  perjury, 
committed  in  evidence  given  upon  any  such  trial  or  investiga- 
tion, on  the  ground  that  his  testimony  will  tend  to  disgrace 
him,  or  render  him  infamous,  or  will  tend  to  convict  him  of  a 
criminal  offense,  or  render  him  liable  to  be  proceeded  against 
therefor.  But  the  testimony  given  by  such  witness  on  such 
trial  or  investigation  shall  not  be  used  against  him  on  the 
trial  of  any  action,  civil  or  criminal,  against  him.  And  noth- 
ing herein  shall  be  construed  as  compelling  any  person  to  tes- 
tify in  any  proceeding  or  trial  in  which  such  person  is  charged 
with  crime." 

Keeping  in  mind  the  compulsory  and  the  protecting  parts 
of  the  foregoing  statutes,  we  come  to  the  statute  of  1881  (chap- 
ter 676),  which  establishes  a  penal  code,  and  which,  so  far  at 
least  as  the  crime  and  proof  of  bribery  is  concerned,  is  in  part 
a  codification  of  preceding  enactments.  So  far  as  the  various 
provisions  of  these  acts  make  the  offender  a  competent  witness, 
and  relieve  him  from  prosecution,  they  are  formulated  in  sec- 
tion 79,  already  quoted:  Pen.  Code,  sec.  79. 

It  is  apparent  from  this  history  of  progressive  legislation 
that  the  word  '*  investigation  "  cannot  be  treated  as  a  word  of 
mere  amplification  to  broaden  the  sense  of  preceding  words, 
but  must  be  deemed  the  deliberate  expression  of  an  intent  on 
the  part  of  the  legislature  to  bring  in  a  distinct  class  of  cases. 
Can  there  be  any  doubt  as  to  the  meaning  of  the  legislature 
in  the  corresponding  clause  of  preceding  statutes? — in  that  of 

▲m.  St.  Rbp.,  Vol.  I.  — U 


866  People  v.  Sharp.  [New  Yorfc, 

1853  (chapter  217),  requiring  the  party  to  give  evidence  before 
"  any  grand  jury  in  any  court,"  or,  in  chapter  539  of  the  same 
year,  "  before  any  magistrate,  grand  jury,  or  in  any  court,"  or 
in  the  act  of  1869  {supra), "  on  any  examination  or  trial,  or  on 
any  investigation  by  any  committee  of  the  legislature,  or  either 
house  thereof,  into  the  conduct  of  any  member  thereof?  "  Each 
successive  statute  goes  further  than  the  preceding,  one  not  in- 
cluding an  examination  before  a  magistrate,  another  includ- 
ing it,  both  obviously  confined  to  examinations  in  the  course 
of  criminal  procedure,  but  the  last  (1869)  bringing  in  a  new 
species,  that  of  legislative  investigation  for  a  certain  end,  and 
of  a  certain  described  class.  But  other  investigations  than 
those  relating  to  the  conduct  of  its  members  were  frequently 
entered  upon  or  ordered  by  the  legislature  to  be  made  through 
its  committee,  in  pursuing  which,  testimony  from  witnesses 
was  required,  and  we  see  no  reason  to  doubt  that  the  legisla- 
ture intended,  by  the  provisions  of  section  79,  to  cover  all  such 
cases,  as  well  as  those  formerly  provided  for,  when  they  in- 
volve an  inquiry  into  matters  relating  to  bribery  as  defined  by 
the  various  sections  of  the  Penal  Code  above  referred  to.  The 
plain  object  of  that  statute  was  to  enable  these  various  tribu- 
nals, whether  magistrates,  grand  juries,  courts,  or  legislature, 
to  make  their  investigations  into  alleged  abuses  efiectual,  and 
enable  them  to  prosecute  their  inquiries  successfully,  and  to 
that  end  protect  witnesses  whose  testimony  might  otherwise 
be  withheld,  but  without  which  the  investigation  would  fail. 
No  reason  has  been  suggested  for  confining  that  protection  to 
witnesses  other  than  those  who  appear  upon  legislative  inves- 
tigations, and  we  are  not  permitted,  by  any  rule  applicable  to 
the  construction  of  statutes,  to  give  the  section  in  question 
such  limitation  as  will  exclude  them.  It  could  only  be  done 
by  inference,  and  by  importing  into  the  statute  words  which 
the  legislature  did  not  choose  to  employ,  and  which  express  a 
meaning  very  diflFerent  from  the  words  actually  used.  This 
we  are  not  at  liberty  to  do.  "  What  else,"  asks  a  learned 
judge,  "  is  restraining  by  inference,  or  varying  by  interpreta- 
tion, but  to  a  certain  extent  recasting  and  remodeling  the 
statute? — or  in  other  words,  invading  the  province  of  the 
legislature  itself?"  Williams,  J.,  in  Garland  v.  Carlisle,  4 
Clark  &  F.  726.  It  certainly  should  not  be  permitted  where 
the  object  of  the  act  under  examination  was  to  extend  the 
policy  of  existing  statutes  to  new  cases,  and  enlarge  and  not 
restrain  its  application,  nor  where  the  intention  of  the  legisla- 


Nov.  1887.]  People  v.  Sharp.  867 

ture  is  clearly  expressed  in  words  deliberately  chosen,  and 
where  a  literal  construction  does  not  take  them  beyond  the 
mischief  at  which  they  were  aimed.  The  case  before  us  is  not 
only  within  the  words  but  within  the  spirit  of  the  statute,  and 
we  are  unable  to  find  any  doubt  or  ambiguity  in  its  language 
which  should  deprive  the  defendant  of  a  construction  accord- 
ing to  the  manifest  import  of  the  words  actually  used. 

We  have  not  overlooked  the  contention  of  the  respondent, 
"  that  sections  68  and  69  of  the  Penal  Code,  making  the  re- 
fusal of  a  witness  to  attend  or  testify  before  a  legislative  com- 
mittee a  misdemeanor,"  limit  the  inquiry  to  "  material  and 
proper  questions,"  nor  the  argument  thereupon,  that  a  ques- 
tion which  calls  for  a  "  criminating  answer  "  is  not  a  proper 
question,  and  the  witness  not  obliged  to  answer.  But  we 
think  that  whatever  efifect  may  bo  given  to  these  sections, 
they  cannot  be  regarded  as  excluding  the  operation  of  the 
subsequent  sections  (78  and  79),  which  deal  with  the  ofiense  of 
bribery,  and  provide  with  mimiteness  for  its  punishment  and 
the  means  of  its  discovery.  The  actual  attendance  of  the 
witness  and  his  disclosures  are  provided  for,  and  it  is  clear 
that  to  make  an  investigation  upon  the  subject  of  bribery 
effectual  there  must  be  some  way  of  compelling  both.  Within 
the  scope  of  those  sections  every  question  may  be  asked  which 
is  "  pertinent "  to  the  subject-matter,  and  whether  it  is  or  not 
pertinent  will  be  the  only  question.  The  statute  relieves  the 
witness,  and  it  will  not  be  necessary  for  the  examining  or  in- 
vestigating tribunal  to  concern  itself  with  the  effect  upon  him. 
If  this  were  not  so,  the  whole  object  of  the  legislature  might 
be  obstructed  by  the  neglect  or  refusal  of  witnesses  to  obey 
the  subpoena  or  answer  the  questions  of  the  committee.  That 
those  put  on  the  investigation,  the  results  of  which  are  now 
before  us,  were  pertinent,  is  apparent  from  the  use  made  of 
the  answers  thereto  upon  the  prosecution  of  the  person  who 
then  testified.  If  the  observations  already  made  are  correct, 
it  follows  there  was  error  in  receiving  them  against  his  objec- 
tion. 

2.  Another  exception  brings  up  the  ruling  of  the  court  as 
to  evidence  from  one  Pottle,  proving  a  corrupt  proposal  by  tho 
defendant  in  1883.  The  witness  was  at  the  time  engrossing 
clerk  of  the  assembly,  and  the  defendant  desired  an  altera- 
tion of  a  certain  bill  then  pending  before  that  body  in  refer- 
ence to  street  railways,  so  that  its  terms  might  authorize  the 
construction  of  a  railroad  on  Broadway.     For  this  alteration 


868  People  v.  Sharp.  [New  York, 

he  proposed  to  pay  the  witness  five  thousand  dollars.  We 
are  unable  to  find  any  ground  on  which  the  evidence  was  ad- 
missible. It  was  introduced  as  part  of  the  affirmative  case 
which  the  prosecution  were  bound  to  carry  to  the  jury.  Its 
admission  is  justified  upon  this  appeal  by  various  propositions 
presented  by  the  people.  First,  say  the  learned  counsel:  "  We 
suppose  that  every  criminal  trial  begins  with  a  presumption 
of  innocence  in  favor  of  the  accused.  This  presumption  must 
be  founded  on  the  moral  rectitude  or  fear  of  the  law,  or  both, 
whichever  the  person  is  supposed  to  possess.  The  presump- 
tion must  be  overcome  before  conviction  can  be  had.  Jacob 
Sharp  was  accused  and  brought  to  trial  for  bribing  the  alder- 
men of  the  city  of  New  York,  and  by  that  means  procuring 
the  grant  of  a  valuable  right.  Evidence  was  offered  to  show 
that  not  long  before  he  had  attempted  to  bribe  another  oflScial 
person  to  do  an  act  which,  as  he  thought,  would  promote  the 
scheme  which  he  had  so  long  pursued.  This  evidence  being 
given  proved  beyond  a  question  that  no  sense  of  right  and 
wrong,  no  fear  of  law  or  punishment,  would  deter  him  from 
committing  the  offense  of  bribery  for  the  one  purpose  which 

he  had  in  view  in  all  his  efforts The  evidence  objected 

to  proved  the  irresistible  strength  of  the  motive  as  against  all 
other  motives  which  might  have  deterred  him,  and  upon  which 
the  presumption  of  innocence  is  founded." 

This  view  cannot  be  sustained;  the  commission  of  a  crime 
by  Sharp  in  1884  was  distinctly  in  issue.  It  was  bribery,  but 
the  subject  was  FuUgraff,  a  member  of  the  common  council. 
Of  the  commission  of  that  crime  the  law  presumed  Sharp  to 
be  innocent.  If  Sharp  had  given  evidence  of  good  character, 
the  prosecution  might  have  answered  that  evidence  by  proof 
that  his  character  was  bad,  but  I  believe  it  has  not  been 
thought  by  any  judicial  tribunal  that  such  evidence  could  be 
given  in  anticipation  of  proof  from  the  defendant,  nor  that  an 
issue  upon  it  could  be  tendered  by  the  prosecution:  People  v. 
White,  14  Wend.  Ill;  Webster's  Case,  5  Cush.  295;  De  Witt  v. 
Greenfield,  5  Ohio,  227;  Commonwealth  v.  Hopkins,  2  Dana,  418; 
Burroughs  on  Circumstantial  Evidence,  533.  But  even  in  the 
case  I  have  supposed  such  evidence  would  be  of  general  repu- 
tation only,  and  not  of  particular  acts  by  which  reputation  is 
shown. 

The  effect  of  the  argument  for  the  people  is,  that  the  evi- 
dence shows  a  disposition  to  commit  the  crime,  —  that  is,  a 
criminal  disposition.     If  that  is  a  different  view,  it  is  equally 


Nov.  1887.]  People  v.  Shabp.  869 

inadmissible.  A  man's  general  character  may  perhaps  be  so 
bad  as  to  permit  an  inference  that  evil  and  good  have  to  him 
the  same  meaning,  and  that  it  is  a  matter  of  indifference  by 
which  he  accomplishes  his  purpose.  In  a  judicial  proceeding, 
however,  proof  of  that  would  be  irrelevant,  although  it  might 
show,  in  a  moral  sense,  that  he  would  be  likely  to  commit  the 
crime  with  which  he  was  charged.  The  person  charged  might 
as  well  seek  to  repel  the  imputation  by  proof  of  particular 
acts  performed  by  him  at  other  periods  of  his  life,  and  a  cause 
submitted  to  a  jury  be  made  to  turn  upon  the  preponderance 
of  proof  on  one  side  of  antecedent  bad  conduct,  and  proof  on 
the  other  of  virtuous  acts.  Legally  speaking,  it  would  be 
unsafe  to  draw  a  conclusion  from  either.  We  are  referred  to 
no  case  holding  that  upon  the  trial  of  an  indictment  charging 
a  specific  crime,  committed  in  a  specific  way,  evidence  that 
the  accused  was  of  a  particular  character  would  be  relevant. 
Moreover,  counsel  on  both  sides  seem  to  agree  that  the  com- 
mission of  one  crime  is  not  admissible  in  evidence  on  the 
trial  of  the  same  offender  for  another  crime.  It  is,  indeed, 
elementary  law  that  no  evidence  can  be  admitted  wliich  does 
not  tend  to  prove  the  issue  joined,  and  the  reason  and  neces- 
sity of  the  rule  are  much  stronger  in  criminal  than  in  civil 
cases  for  the  observance  of  this  rule  and  of  confining  the  evi- 
dence strictly  to  the  issue.  The  indictment  is  all  that  the 
defendant  is  expected  to  come  prepared  to  answer.  There- 
forp,  the  introduction  of  evidence  of  another  and  extraneous 
crime  is  calculated  to  take  the  defendant  by  surprise,  and  do 
him  manifest  injustice  by  creating  a  prejudice  against  his 
general  character.  How,  then,  is  this  case  to  be  taken  out  of 
this  general  rule  of  law?  The  learned  judge,  in  submitting 
the  case,  desired  the  jury  to  consider  the  Pottle  evidence  "as 
only  showing  the  zeal  which  the  defendant  exhibited,"  and 
not  allow  themselves  to  be  prejudiced  by  his  testimony  in 
regard  to  the  offer  of  a  bribe,  saying:  "  It  is  only  to  be  consid- 
ered as  showing,  like  other  evidence  in  the  case,  the  extent  of 
the  defendant's  feeling,  interest,  and  desire";  adding:  "I 
should  be  sorry  if  the  fact  that  Pottle  testified  to  the  offer  of 

a  bribe  should  be  otherwise  considered So  far  as  it 

tends  to  throw  any  dark  shadow  upon  the  character  of  the 
defendant,  I  desire  you  to  eliminate  it  from  your  consideration, 
and  treat  it  merely  as  evidence  tending  to  show  depth  of  in- 
terest, motive,  and  desire." 
These  remarks  not  only  answer  the  respondent's  argument, 


870  People  v.  Sharp.  [New  York, 

but  point  to  the  danger  which  might  follow  from  the  evidence. 
They  were  obviously  inadequate  to  prevent  it.  Nor  does  the 
discrimination  between  crime  proven  and  a  conversation  make 
the  evidence  less  objectionable.  As  presented  to  the  jury,  it 
was  distinctly  a  crime  committed.  The  point  of  inquiry  was 
that,  and  it  was  plainly  so  avowed  by  the  counsel  for  the 
people.  He  brought  the  witness  Pottle  and  Sharp  together^ 
proved  by  him  that  he  then  had  the  "  general  surface  railroad 
act  in  his  possession  as  engrossing  clerk  ";  that  he  had  a  con- 
versation with  Sharp  "in  relation  to  the  bill";  that  he  had  a 
conversation  with  him  "on  the  subject  of  the  bill  including 
or  not  including  Broadway  as  one  of  the  streets  in  the  bill." 
Then  asked,  "  Had  you  any  conversation  with  him  as  to 
whether  he  did  or  did  not  desire  to  have  Broadway  included 
as  one  of  the  streets  in  the  bill?"  The  defendant's  counsel 
objected,  but  the  objection  was  overruled  and  an  exception 
taken,  and  the  witness  replied,  "  I  did."  He  was  then  asked 
to  state  "  all  he  [Sharp]  said  on  the  subject,"  and  the  counsel 
for  the  defendant  asked  "  to  be  informed  to  what  point  the 
evidence  is  to  be  directed,"  saying  "  there  is  a  particular  pur- 
pose in  this  question,  and  I  think  we  might  properly  be  advised 
what  it  is."  After  some  discussion,  the  district  attorney  said: 
"  I  intend  to  prove  that  Pottle  was  sent  for  by  this  defendant; 
that  he  went  to  defendant's  room;  that  this  defendant  there- 
upon offered  Mr.  Pottle  the  sum  of  five  thousand  dollars  to  add 
to  one  of  the  sections  of  that  bill  the  words  '  Broadway  and 
Fifth  Avenue,'  permitting  a  horse-railway  company  to  be  con- 
structed upon  those  streets;  that  Pottle  declined  the  proposi- 
tion, and  that  Sharp  then  offered  the  same  sum  in  case  he 
would  give  him  the  original  bill;  that  is  what  I  desire  to 
prove";  whereupon  defendant's  counsel  said:  "We  object  to 
it  upon  the  ground  that  it  is  evidence  of  an  utterly  distinct 
charge  of  crime."  The  court  said:  "  Upon  the  whole,  my  judg- 
ment is  that  the  evidence  is  admissible." 

A  careful  examination  of  the  evidence  given  by  Pottle  au- 
thorizes the  comment  of  the  appellant's  counsel  that  "  it  was 
not  part  of  the  conversation,  but  that  it  was  the  whole."  Un- 
less admissible  as  proving  an  attempt  to  commit  a  crime,  it  is 
wholly  immaterial,  and  as  proof  of  a  crime,  it  was  irrelevant, 
and  must  have  been  very  prejudicial  to  the  defendant.  It 
showed  a  capacity  or  willingness  to  commit  bribery  in  1883,  to 
induce  an  act  from  which  Sharp  might  be  benefited  as  one  de- 
eiring  the  construction  of  the  road,  but  which,  in  fact,  gave 


Nov.  1887.]  People  v   Sharp.  871 

him  no  advantage  over  other  citizens.  It  gave  him  no  fran- 
chise; but  it  could  not  fairly  be  inferred  from  such  premises 
that  in  1884  he  did  also  bribe  a  different  person  for  a  different 
purpose.  The  inference  would  be  purely  conjectural.  The 
mental  ability  and  disposition  of  the  defendant  to  commit  a 
crime  of  this  sort,  while  it  might  persuade  a  jury,  raises  no 
legal  presumption.  It  is  not  moral  evidence  even.  The  fact 
under  investigation,  in  its  circumstances,  was  entirely  unlike 
the  fact  disclosed  by  the  witness.  There  is  no  analogy  between 
them.  Yet  the  inference  drawn  by  the  prosecuting  officer,  and 
permitted  by  the  court,  left  it  for  the  jury  to  say  that  the  desire 
of  Sharp  manifested  by  the  offer  of  a  bribe  in  one  instance  was 
the  same  desire  which  led  to  the  actual  giving  of  a  bribe  in  the 
other;  hence,  that  the  two  crimes  have  the  same  origin.  Evi- 
dence of  moral  character  is  admitted  to  disprove  the  existence 
of  a  criminal  motive,  or  to  rebut  evidence  of  it,  but  evidence  of 
a  prior  crime  can  have  no  legitimate  place  in  an  investigation 
as  to  whether  a  subsequent  crime  was  committed  by  the  same 
person.  If  it  had  been  proven  that  Sharp  had  in  fact  given 
the  money  to  Fullgraff,  and  the  question  was  as  to  its  being 
an  innocent  or  criminal  act,  a  gift  which  ho  had  a  right  to 
make,  or  which  he  made  corruptly,  the  fact,  if  it  were  a  fact, 
that  he  sought  to  attain  a  similar  end  by  bribery,  might  seem 
to  show  the  intent  with  which  the  act  charged  was  done.  But 
here  the  very  thing  in  dispute  was  whether  he  gave  the  money, 
and  that  upon  a  former  and  different  occasion  he  had  offered 
money  with  a  guilty  purpose  to  another  person  could  not 
fairly  be  held  as  relevant  to  that  question.  Moreover,  it  had 
been  distinctly  conceded  by  the  defendant  that  he  desired  to 
secure  the  franchise  for  the  Broadway  Surface  railroad,  and 
therefore,  evidence  of  his  commission  of  a  crime  for  the  mere 
purpose  of  showing  that  desire  was  wholly  unnecessary,  and 
we  may  repeat  here  the  language  of  Allen,  J.,  in  the  Coleman 
Case,  55  N.  Y.  81,  upon  a  similar  question:  "  It  was  idle  and 
frivolous  to  put  in  this  evidence  for  the  purpose  avowed,  while 
its  influence  could  not  be  otherwise  than  damaging  to  the 
prisoner."  It  was  put  in  near  the  beginning  of  the  trial, 
and  the  impression  then  made  must  have  continued  with  the 
jury,  and  in  their  minds,  colored  and  deepened,  if  it  did  not 
distort  the  subsequent  evidence. 

It  did,  indeed,  cast  a  dark  shadow  upon  the  defendant'f 
character;  it  not  only  tended  very  strongly  to  prove  the  de- 
fendant guilty, — it  was  absolute  proof, — but  it  was  of  a  differ- 


£72  People  v.  Sharp.  [New  York^ 

ent  crime  from  that  charged.  It  was  offered  and  received  di- 
rectly on  the  main  issue,  and  was  of  great  and  persuasive 
force  against  him.  Such  evidence  is  uniformly  condemned  a& 
tending  to  draw  away  the  minds  of  the  jurors  from  the  real 
point  on  which  their  verdict  is  sought,  and  to  excite  prejudice^ 
and  mislead  them.  It  was,  we  think,  improperly  received^ 
and  the  exception  to  its  admission  well  taken. 

3.  We  are  also  of  opinion  that  there  was  error  in  the  exami-^ 
nation  of  the  witness  Miller.  He  was  an  alderman  at  the 
time  of  the  passage  of  the  resolution,  but  we  do  not  find  h& 
was  a  party  to  any  agreement  concerning  its  passage.  Against 
the  objection  of  the  defendant,  he  was  allowed  to  testify  that, 
after  the  "  consent "  was  given,  he  received  from  De  Lacy  five 
thousand  dollars.  The  district  attorney  then  asked:  "You 
understood,  did  you  not,  that  you  received  that  money  from 
De  Lacy  on  account  of  the  Broadway  Surface  railroad?"  A. 
"  No,  sir;  nothing  of  the  kind."  A  further  examination  as  to 
the  circumstances  and  the  time  of  its  receipt  followed,  and 
the  witness  said  De  Lacy  gave  me  a  roll  of  bills,  "  and  said 
there  is  something  to  buy  election  tickets  with."  Asked  by  the 
district  attorney:  ''  Did  you  not  understand  at  the  time  it  was 
paid  on  account  of  the  Broadway  railroad  company?"  A. 
"  No,  sir;  I  had  no  understanding  of  that  kind  with  him." 
Q.  "What  was  your  understanding  att  he  time?"  To  thia 
question  there  was  not  only  the  specific  objection  that  the  evi- 
dence asked  for  was  incompetent  against  Sharp,  but  the  fur- 
ther objection  that  it  was  asking  for  a  conclusion.  The  court 
allowed  it,  and  the  defendant  excepted.  A.  "  There  was  no 
particular  understanding  about  it,  so  far  as  I  was  concerned. 
There  was  nothing  said  about  it."  Q.  "  What  did  you  think, 
at  the  time,  De  Lacy  gave  it  to  you  for?  "  The  court  held  this 
competent.  Witness:  "  What  did  I  think?  "  District  attor- 
ney: "That  is  the  question  asked  you."  A.  "About  what? "^ 
District  attorney:  "As  to  what  De  Lacy  gave  it  to  you  for." 
A.  "Well,  I  had  my  misgivings."  District  attorney:  "Tell 
us,  what  did  you  think  at  the  time  what  he  gave  it  to  you 
for?  "  Witness:  "  I  supposed  it  was  for  the  Broadway  road." 
It  is  quite  impossible  to  find  any  ground  on  which  the  excep- 
tion taken  can  be  overcome.  The  transaction  was  not  with 
Sharp.  The  question  called  for  no  fact,  but  with  frequent 
iteration  for  an  opinion,  —  a  supposition.  Its  importance,  in 
the  estimation  of  the  people,  is  manifest  from  the  repeated  and 
persistent  attempts  to  obtain  it.     The  court  below  were  of 


Nov.  1887.]  People  v.  Shabp.  873 

opinion  that  the  ruling  was  erroneous,  but  that  the  jury  could 
not  have  given  any  eflfect  whatever  to  the  mere  expression  of 
opinion  or  supposition  of  the  witness,  because  the  whole  trans- 
action between  De  Lacy  and  the  witness  was  afterwards 
given.  It  was,  but  the  narration  also  was  received  under  an 
objection,  and  was  excepted  to.  It  certainly  did  not  cure  the 
diflficulty.  The  question  to  be  settled  was,  whether  the  money 
was  part  of  the  fruits  of  a  corrupt  agreement,  whether  the 
transaction  was  an  incident  of  the  scheme  with  the  formation 
of  which  the  defendant  was  charged,  whether  the  alleged  fact 
of  bribery  was  true;  and  this,  like  any  other  question  of  fact, 
was  to  be  settled  by  evidence.  The  opinion,  the  thought,  the 
understanding  of  the  witness,  was  not  evidence.  The  jury 
might,  however,  naturally  reason  that  the  conclusion  of  the 
witness,  drawn  from  all  the  facts  within  his  own  knowledge, 
fairly  represented  the  nature  and  the  extent  of  the  connec- 
tion between  the  circumstance  to  which  he  testified  and  the 
fraudulent  practices  which  had  preceded  it.  It  was  ad- 
mitted because  claimed  to  be  relevant  and  material  by  the 
prosecuting  officer  and  the  court;  and  whether  in  any  or  in 
what  degree  it  did  aflfect  the  jury  cannot  be  known.  The 
payment  of  a  large  sum  of  money  to  the  witness  was  a  pal« 
pable  fact.  Whether  it  was  paid  to  him  in  his  capacity  of 
alderman,  or  in  connection  with  or  on  account  of  the  consent 
obtained  from  the  board  of  aldermen,  could  not  properly  be 
answered  by  the  jury  upon  the  suspicion  or  conjecture  of  the 
witness.  That  it  was  not  so  answered  we  cannot  say.  The 
respondent's  counsel,  however  (the  district  attorney),  argues 
that  the  question  was  proper,  but  that  the  answer  was  not 
responsive.  The  interlocution  between  the  witness  and  the 
prosecutor  seems  to  indicate  that  there  was  no  misapprehen- 
sion on  the  part  of  the  witness,  and  that  the  answer  was  the 
answer  called  for  by  the  question,  and  directly  fitting  to  it. 
The  learned  counsel  did  not  stop  his  examination  after  prov- 
ing the  receipt  of  the  money,  but  sought  the  mental  conclusion 
of  the  witness  as  to  the  consideration  of  or  inducement  to  the 
the  gift;  and  the  answer  was  accepted  by  him. 

4.  The  public  prosecutor,  to  make  out  the  case,  and  as  part 
of  his  evidence  in  chief,  offered  to  show  by  a  detective  officer 
that  he  had  been  employed  by  the  district  attorney  to  servo 
subpoenas  upon  Maloney,  Keenan,  and  De  Lacy,  all  of  whom 
the  district  attorney  claimed  to  be  material  and  competent 
witnesses,  and  to  show  further  that  the  detective  was  unable 


874  People  v.  Sharp.  [J^ew  York, 

to  find  them  in  this  state,  but  did  find  Maloney  in  Canada,  and 
there  served  him  with  a  subpoena,  and  learned  that  the  others 
were  in  Canada  also,  although  he  did  not  see  them.  These 
persons  were  named  in  the  indictment  as  co-defendants  with 
Sharp,  and  the  evidence  already  in  tended  to  show  that  somo 
of  them,  and  especially  Maloney,  were  intermediaries  between 
the  persons  offending  against  the  provisions  of  the  statutes  re- 
lating to  bribery,  or  instruments  of  whomever  committed  the 
act  charged. 

The  evidence  was  objected  to  by  defendant's  counsel,  but 
admitted.  It  was  not  claimed  by  the  prosecution  that  the 
defendant  was  privy  to  their  absence,  or  that  the  object  of  the 
proof  was  to  furnish  a  basis  for  evidence  otherwise  inadmissible. 
The  learned  district  attorney  disclaimed  any  intention  "of 
proving  the  flight  of  these  persons  as  co-conspirators,"  and  so 
make  use  of  their  absence  as  evidence  of  guilt,  or  an  admission 
by  their  conduct  that  the  accusation  against  them  and  the 
defendant  was  true,  but  said  he  offered  it  only  for  the  purpose 
of  showing  that  after  dUigent  effort  he  was  unable  to  procure 
their  attendance  as  witnesses,  and  thus  enable  him  to  account 
for  their  absence. 

His  claim  is,  that  they  were  depositaries  of  the  direct  proof  of 
the  conspiracy  which  the  prosecution  were  engaged  in  estab- 
lishing, and  accomplices  of  the  defendant.  The  evidence 
already  in  was,  so  far  as  Sharp  was  concerned,  altogether  cir- 
cumstantial, but  tended  to  show  that  the  persons  named,  or 
some  of  them,  were  qualified  from  actual  knowledge  to  give 
evidence  bearing  more  or  less  directly  upon  the  very  point  in 
issue.  We  think  evidence  of  their  absence  was  inadmissible. 
It  could  have  no  legitimate  bearing  upon  the  issue,  and  the 
danger  is  very  great  that  such  testimony  will  prejudice  a  party 
against  whom  it  is  offered.  It  may  be,  and  frequently  is,  ad- 
missible in  answer  to  evidence  from  the  other  side  which 
would  naturally  call  for  an  explanation.  But  the  absence  out 
of  the  jurisdiction  of  the  court  of  an  associate,  or  one  seemingly 
connected  with  the  defendant  in  the  act  charged,  is  easily 
construed  as  evidence  of  guilt,  and  unless  the  occasion  calls 
for  such  proof  it  should  not  be  allowed.  It  is  an  old  maxim 
that  "  he  confesses  the  fault  who  avoids  the  trial,"  but  in  its 
application,  even  to  the  fugitive,  there  is  great  danger  of  error. 
A  man  may  avoid  the  trial  from  many  motives  besides  con- 
sciousness of  guilt,  but  however  actuated  his  conduct  can  in 
no  degree,  in  a  court  of  justice,  reflect  upon  another.     Its 


Nov.  1887.]  People  v.  Sharp.  875 

admission  in  this  case  was  virtually  saying  to  the  jury,  "  there 
is  better  evidence,  and  it  might  be  had  from  the  defendant's 
associates;  it  is  not  the  fault  of  the  prosecution  that  the  evi- 
dence is  not  before  you,  but  because  of  the  voluntary  act  of 
those  who,  with  the  defendant,  stand  charged  with  the  of- 
fense." Thus  the  non-production  of  the  witnesses  is  made 
to  supply  the  place  of  proof  of  the  issue;  with  that  issue  the 
evidence  had  no  possible  connection.  The  rule  is,  that  where 
a  party  to  an  issue  on  trial  has  proof  in  his  power,  which  if 
produced  would  render  material  but  doubtful  facts  certain, 
the  law  presumes  against  him  if  he  omits  to  produce  that 
proof,  and  authorizes  a  jury  to  resolve  all  doubts  adversely  to 
his  defense. 

But  the  rule  cannot  be  applied  unless  it  appears  that  the 
proof,  whether  it  is  a  living  witness  or  paper,  is  within  his 
power.  It  is  easy  to  see  that  the  evidence  offered  here  might 
be  used  for  an  ulterior  purpose,  although  not  pressed  by  the 
prosecution,  yet  entertained  and  made  effective  by  the  jury; 
and  there  certainly  could  be  no  presumption  that  the  prosecu- 
tion had  the  power  to  produce  any  particular  witness,  certainly 
not  one  of  those  named,  nor  did  the  law  require  it  of  them. 
It  is  therefore  impossible  to  find  any  reason  for  or  lawful  pur- 
pose to  be  gained  by  the  proof  offered,  and  its  admission  was 
a  very  dangerous  innovation  upon  the  general  rule,  which  ex- 
cludes it  as  irrelevant  to  the  issue.  Nor  was  it  a  mere  question 
ae  to  the  order  of  proof.  It  was  introduced  as  affirmative 
evidence,  and  while  it  could  do  the  prosecution  no  legal  good, 
must  subject  the  defendant  to  the  prejudices  and  unfavorable 
inferences  suggested  by  the  absence  of  a  co-defendant  whose 
presence,  if  innocent,  could  not  but  assist  the  defendant,  but 
whose  absence  and  refusal  to  obey  a  subpoena  might  easily  be 
regarded  as  a  confession  of  guilt,  and  could  not  fail  to  strengthen 
in  an  appreciable  degree  the  case  of  the  prosecution.  The  only 
case  cited  in  support  of  the  ruling  is  Pease  v.  Smith,  61  N.  Y. 
477.  That  was  a  civil  action.  The  absent  witness  was  con- 
fined in  a  state  prison,  not  by  his  own  consent;  and  whatever 
may  be  said  of  the  decision,  it  has  no  application  here,  nor 
should  it  be  extended  to  other  circumstances  than  those  there 
disclosed. 

It  is  also  said  by  the  district  attorney  that  the  defendant 
upon  cross-examination  of  one  of  the  prosecutor's  witnesses 
had  shown  the  absence  of  one  of  these  persons,  and  that  ho 
was  in  Canada.    The  same  fact  w  to  all  of  them  seems  to 


876  People  v.  Sharp.  [New  York, 

have  been  assumed  as  if  already  before  the  jury.  Why,  then^ 
■was  the  evidence  insisted  upon  ?  In  answer  to  a  question  from 
the  learned  trial  judge,  whether  the  defendant  would  not  "have 
a  right  to  argue  to  the  jury  in  summing  up  that  in  view  of  all 
the  testimony  the  people  should  have  called  Maloney,"  the 
defendant's  counsel  said:  "No,  sir;  how  could  we  argue  that, 
when  we  know  already  from  the  opening  of  the  district  attor- 
ney that  Maloney  is  not  accessible  to  a  subpoena,"  and  dis- 
claimed any  intention  of  so  doing,  or  that  it  "  could  be  done 
in  common  fairness,"  with  such  earnestness  that  it  is  very 
diflficult  to  see  why  the  introduction  of  the  evidence  was 
pressed,  if  no  other  purpose  existed  than  to  escape  the  impu- 
tation of  keeping  back  testimony.  Proof  even  of  the  absence 
of  these  persons  was  inadmissible.  But  that  was  not  all.  The 
proof  was  not  only  of  their  absence,  but  of  unavailing  search 
by  a  detective,  the  service  of  a  subpoena  upon  some  of  them, 
and  the  failure  to  obey  its  mandate.  Under  the  circumstances 
of  the  case,  the  ruling  of  the  court  in  this  instance  may  not 
have  been  of  much  importance,  and  upon  it  alone  we  should 
not  grant  a  new  trial.  But  the  legal  principle  which  requires 
relevant  and  material  evidence,  and  admits  no  other,  is  im- 
portant, and  however  serious  the  charge  against  an  accused 
person  may  be,  and  however  great  the  evil  it  uncovers,  he  can- 
not properly  be  made  the  subject  of  a  judicial  sentence,  unless 
the  crime  is  substantiated  according  to  the  established  rules 
of  evidence.  The  other  exceptions  above  referred  to  point  to 
violations  of  those  rules  to  the  manifest  prejudice  of  the  de- 
fendant, and  to  the  benefit  of  those  exceptions  he  is  entitled. 
They  require  a  new  trial,  and  that  it  may  be  had  the  judg- 
ment of  the  court  below  and  the  conviction  should  be  reversed, 
and  a  new  trial  granted. 

Peckham,  J.  It  seems  to  me  that  the  admission  of  the 
evidence  given  by  the  witness  Pottle  was  error.  There  is  not 
room  for  much  discussion  in  regard  to  the  general  principle 
upon  which  evidence  that  proves  or  tends  to  prove  the  prisoner 
guilty  of  other  felonies  or  misdemeanors  is  admitted.  It  is 
conceded  on  all  sides  that  the  admission  of  such  testimony 
forms  an  exception,  and  a  very  material  and  important  excep- 
tion, to  the  general  rule  of  evidence. 

The  general  rule  is,  that  when  a  man  is  put  upon  trial  for 
one  offense,  he  is  to  be  convicted,  if  at  all,  by  evidence  which 
shows  that  he  is  guilty  of  that  offense  alone,  and  that,  under 


Nov.  1887.]  People  v.  Sharp.  877 

ordinary  circumstances,  proof  of  his  guilt  of  one  or  a  score  of 
other  offenses  in  his  lifetime  is  wholly  excluded.  But  for  the 
purpose  of  showing  guilt  of  the  offense  for  which  the  prisoner 
is  on  trial,  as  also  for  the  purpose,  where  that  is  important,  of 
showing  the  motive  or  intent  with  which  an  act  claimed  to  be 
a  crime  was  committed,  evidence  which  is  material  upon  such 
issues  is  admitted,  although  it  may  also  tend  to  show,  or  even 
directly  prove,  the  guilt  of  the  accused  of  some  other  felony 
or  misdemeanor.  Whether  the  evidence  in  any  particular 
case  comes  within  the  well-known  exceptions  to  the  general 
rule  is  often  the  difficult  question  to  solve,  and  not  as  to  what 
the  rule  itself  really  is.  Thus  there  is  a  class  of  cases  in 
which  evidence  is  admitted  where  it  is  material  to  show  guilty 
knowledge  of  the  character  of  the  act  committed  by  the  pris- 
oner. A  good  illustration  of  this  class  of  cases  is  in  the  trial 
of  an  indictment  for  passing  counterfeit  money.  Evidence  of 
the  passage  of  like  money  within  a  reasonable  time  before  or 
after  the  commission  of  the  offense  for  which  the  prisoner  is 
on  trial,  is  admitted  for  the  purpose  of  showing  that  when  he 
passed  the  money  in  question  it  was  not  through  ignorance  of 
its  character.  A  man  might  think  the  money  he  passed  was 
good,  and  he  might  be  mistaken  once,  or  even  twice;  but  the 
resumption  of  mistake  lessens  with  every  repetition  of  the 
act  of  passing  money  really  counterfeit.  Hence  evidence  of 
such  repetition  bears  directly  and  materially  upon  the  issue 
before  the  jury.  To  this  same  class  would  belong  the  case  of 
an  indictment  for  shooting  an  individual.  For  the  purpose 
of  proving  that  the  shooting  was  not  accidental,  where  such  a 
a  fact  is  claimed,  evidence  may  be  given  of  efforts,  or  even 
threats,  made  by  the  defendant  to  shoot  the  same  individual 
on  prior  occasions.  Thus  the  probability  of  the  shooting  being 
accidental  is  lessened  by  showing  prior  efforts  or  threats  to 
accomplish  the  same  act  for  which  the  prisoner  is  on  trial. 
Cases  of  embezzlement  and  of  obtaining  money  or  other  prop- 
erty by  false  pretenses  come  under  the  same  general  rule.  A 
man  indicted  for  the  embezzlement  of  funds  by  false  entries 
might  claim,  with  some  degree  of  plausibility  perhaps,  that 
the  entry  was  a  mistake,  but  the  probability  of  such  mistake 
would  be  greatly  lessened  by  proof  that  other  false  entries  of 
the  same  kind  had  been  made  at  or  about  the  same  time  by 
the  same  person. 

Then  there  is  another  class  of  cases  in  which  the  facts  show 
the  commission  of  two  crimes,  and  that  the  individual  who 


878  People  v.  Sharp.  [New  York, 

committed  the  other  crime  also  committed  the  oue  for  which 
the  defendant  is  on  trial.  Evidence  is  then  permitted  to  show 
that  the  defendant  was  the  person  who  committed  the  other 
crime,  because  in  so  doing,  under  the  circumstances,  and  from 
the  connection  of  the  defendant  with  the  other  crime,  the  evi- 
dence of  his  guilt  of  such  other  crime  is  direct  evidence  of  his 
guilt  of  the  crime  for  which  he  is  on  trial.  Another  class  in 
which  evidence  of  this  nature  is  admissible  is,  where  it  is 
proper  for  the  purpose  of  showing  a  motive  for  the  commission 
of  the  main  crime. 

It  is  claimed  in  this  case  that  the  evidence  was  admissible 
on  the  ground  that  it  showed  or  tended  to  show  the  intent  on 
the  part  of  the  prisoner  in  paying  the  money  to  Fullgraff  after 
proof  had  been  received  that  money  was  given  him,  and  also 
upon  the  ground  that  it  tended  to  show  the  motive  of  the  de- 
fendant for  the  commission  of  the  crime.  If  this  evidence  did 
materially  and  directly  tend  to  show  either  such  intent  or 
motive,  and  if  it  were  not  too  remote  in  point  of  time,  and  if 
it  logically  connected  the  fact  to  be  proved  with  the  main 
transaction,  then  it  way  well  be  that  it  was  admissible,  even 
though  it  tended  to  prove  the  defendant  guilty  of  another  and 
separate  offense.  The  admission  of  the  evidence  of  Pottle 
Beems  to  me,  however,  to  carry  the  principle  further,  and  to  a 
much  more  dangerous  extent  than  any  other  case  that  has 
come  under  my  observation. 

Upon  the  question  of  the  intent  with  which  the  money  was 
paid  to  Fullgraff,  the  evidence,  I  think,  falls  far  short  of  such 
logical  and  close  connection  therewith,  as  is  necessary  to  render 
it  admissible.  The  fact  being  established  that  such  payment 
was  made,  and  that  the  defendant  was  connected  with  its  pay- 
ment, the  intent  could  not  be  a  matter  of  any  real  doubt. 
That  it  was  paid  to  obtain  the  vote  of  Fullgraflf  as  an  alder- 
man for  granting  the  franchise  to  the  Broadway  Surface  rail- 
road, could  not  be  made  a  subject  of  honest  discussion.  All 
the  evidence  was  to  that  effect,  and  there  was  absolutely  no 
evidence  to  the  contrary,  and  to  offer  evidence  of  the  commis- 
sion of  another  crime  for  the  avowed  purpose  of  thereby  show- 
ing the  intent  with  which  this  money  was  paid  to  Fullgraff 
would  have  made  to  my  mind  a  clear  case  of  offering  it  on  a 
colorable  issue,  and  using  it  for  another  and  wholly  inadmis- 
sible purpose.  However  that  may  be,  the  evidence  was  not 
admissible  even  on  the  question  of  intent. 

As  is  very  well  said  by  Mr.  Justice  Agnew  in  State  v. 


Nov.  1887.]  People  v.  Sharp.  879 

Lapage,  57  N.  H.  245-295,  24  Am.  Rep.  69:  "  It  should  also  be 
remarked  that  this  being  a  matter  of  judgment,  it  is  quite 
likely  that  courts  would  not  all  agree,  and  that  some  courts 
might  see  a  logical  connection  where  others  could  not.  But 
however  extreme  the  case  may  be,  I  think  it  will  be  found 
that  the  courts  have  always  professed  to  put  the  admissibility 
of  the  testimony  on  the  ground  that  there  was  some  logical 
connection  between  the  crime  proposed  to  be  proved  other 
than  the  tendency  to  commit  one  crime  as  manifested  by  the 
tendency  to  commit  the  other." 

Judge  Earl,  in  the  case  of  People  v.  Shulmariy  reported  in  a 
note  to  Mayer  v.  People,  80  N.  Y.  864,  at  376,  states  as  follows: 
"  But  there  is  one  general  rule  which  must  apply  to  all  such 
cases.  There  must  be  in  the  transaction  thus  sought  to  be 
proved  some  relation  to  or  connection  with  the  main  transac- 
tion; that  is,  they  must  show  a  common  motive  or  intent 
running  through  all  the  transactions,  or  they  must  be  such  as 
in  their  nature  to  show  guilty  knowledge  at  the  time  of  the 
main  transaction."  And  in  the  case  of  Mayer  v.  People,  supra, 
which  was  the  case  of  an  indictment  for  obtaining  goods  by 
false  pretenses,  Rapallo,  J.,  in  speaking  of  the  admissibility 
of  testimony  of  this  nature  upon  the  question  of  intent,  said: 
"  That  when  the  representations,  their  falsity,  and  the  knowl- 
edge of  the  accused  that  they  were  false,  is  established  by 
competent  testimony,  the  allegation  that  they  were  made  with 
intent  to  defraud  may  be  supported  by  proof  of  dealings  by 
the  accused  with  parties  other  than  the  complainant,  which 
tend  to  show  a  fraudulent  scheme  to  obtain  property  by  de- 
vices similar  to  those  practiced  upon  him,  provided  the  deal- 
ings are  sufficiently  connected  in  point  of  time  and  character 
to  authorize  an  inference  that  the  purchase  from  the  complain- 
ant was  made  in  pursuance  of  the  same  general  transaction." 

Under  such  conditions  and  guided  by  such  rules,  it  does 
not  seem  to  me  that  this  evidence  by  Pottle  was  so  connected 
legitimately  with  the  main  transaction  —  that  of  the  alleged 
bribery  of  FullgrafT — as  in  any  way  to  characterize  the  intent 
with  which  the  money  was  alleged  to  have  been  paid  Full- 
grafT, in  any  other  sense  than  the  evidence  tends  to  show 
capacity  upon  the  part  of  the  defendant  to  commit  the  crime, 
because  he  had  months  before  attempted  to  commit  one  of  a 
similar  natufe  with  another  person  for  the  purpose  of  accom- 
plishing another  act. 

It  is  a  very  general  and  extremely  broad,  and  I  think  a 


880  People  t;.  Sharp.  [New  York, 

dangerous,  ground  upon  which  to  claim  the  admissibility  of 
evidence  of  this  character,  to  say  that  it  tends  to  show  that 
the  prisoner  was  so  desirous  of  obtaining  a  railroad  on  Broad- 
way that  he  was  willing  to  commit  a  crime  for  the  purpose  of 
securing  his  object.  It  seems  to  me  this  is  nothing  more  than 
an  attempt  to  show  that  the  defendant  was  capable  of  com- 
mitting the  crime  alleged  in  the  indictment,  because  he  had 
been  willing  to  commit  a  similar  crime  long  before,  at  another 
place,  and  for  the  purpose  of  accomplishing  the  commission 
of  another  act  by  a  different  person.  To  adopt  so  broad  a 
ground  for  the  purpose  of  letting  in  evidence  of  the  commis- 
sion of  another  crime  is,  I  think,  of  a  very  dangerous  tendency. 
It  tends  necessarily  and  directly  to  load  the  prisoner  down 
with  separate  and  distinct  charges  of  past  crime,  which  it 
cannot  be  supposed  he  is  or  will  be  in  proper  condition  to 
meet  or  explain,  and  which  necessarily  tend  to  very  gravely 
prejudice  him  in  the  minds  of  the  jury  upon  the  question  of 
his  guilt  or  innocence.  I  do  not  think  that  eyidence  of  the 
kind  in  question,  and  in  such  a  case  as  is  here  presented, 
legitimately  tends  to  enlighten  a  jury  upon  the  subject  of  the 
intent  with  which  money  was  paid  many  months  thereafter  to 
another  person,  at  a  different  place,  and  to  accomplish  the 
commission  of  another  act.  It  throws  light  upon  that  intent 
only,  as  it  tends  to  show  a  moral  capacity  to  commit  a  crime. 
It  gives,  under  the  circumstances,  entirely  too  wide  an  oppor- 
tunity for  the  conviction  of  an  accused  person  by  prejudice 
instead  of  by  evidence  showing  the  actual  commission  of  the 
crime  for  which  the  defendant  is  on  trial. 

Upon  the  question  of  motive,  using  that  word  in  the  sense 
of  a  reason  why  the  prisoner  should  commit  the  crime,  I  do 
not  see  that  it  has  the  least  materiality  or  bearing.  It  shows 
and  tends  to  show  no  such  reason.  It  only  tends  to  show  that 
the  prisoner  took  an  interest  in  the  inclusion  of  Broadway  in 
the  bill  permitting  railroad  tracks  to  be  laid  in  the  streets  of 
cities.  It  might  be  argued,  therefore,  that  he  took  an  interest 
in  or  had  a  desire  for  a  railroad  in  that  street.  As  a  reason  or 
motive  for  such  desire  the  evidence  in  no  aspect  tends  to  en- 
lighten us.  By  the  passage  of  the  act  of  1883,  the  prisoner 
would  have  had  no  greater  right  than  any  one  else  to  obtain 
the  road.  Others  could  compete  for  it  as  well  as  a  corporation 
in  which  he  was  interested.  No  reason  for  any  interest  in  this 
question  is  shown  by  this  evidence.  It  is  the  simple,  bald, 
and  naked  proposition  which  the  evidence  is  claimed  to  prove, 


Nov.  1887.]  People  v.  Sharp.  881 

viz.,  the  interest  of  the  prisoner,  and  this  interest  is  to  be  es- 
tablished by  proof  of  the  commission  of  a  crime  under  the 
circumstances  detailed,  and  months  before  the  commission  of 
the  one  charged  in  the  indictment.  This  cannot  be  said  to 
prove  or  tend  to  prove  a  motive  for  the  commission  of  the 
crime  in  question  within  the  meaning  of  the  law,  while  upon 
the  question  of  mere  interest  or  desire  the  evidence  is  too  re- 
mote and  too  dangerous  to  be  permitted. 

One  of  the  cases  cited  upon  this  branch  of  the  argument 
was  that  of  Pierson  v.  People,  79  N.  Y.  424,  35  Am.  Rep.  524. 
There  the  prisoner  was  charged  with  murdering  one  Withey, 
who  was  a  married  man.  The  prisoner  was  also  a  married 
man.  Evidence  had  been  given  of  intimate  relations,  though 
not  necessarily  criminal,  between  the  prisoner  and  Withey's 
wife,  before  the  death  of  the  deceased.  After  the  murder  the 
prisoner  took  the  widow  and  her  sister  to  the  house  of  a  friend 
in  the  evening,  and  came  away  with  the  widow  late  that  night 
alone.  A  few  days  after  the  murder  the  prisoner  disappeared 
from  the  neighborhood.  It  was  then  proved  by  a  witness 
from  Michigan,  who  was  a  clergyman,  that  the  prisoner  and 
the  widow  of  Withey  appeared  before  him  and  were  married, 
and  that  the  prisoner  declared  on  oath  before  him  that  he 
knew  of  no  legal  obstacle  to  his  marriage  with  the  woman, 
and  thereupon  he  married  them.  This  evidence  was  objected 
to,  on  the  ground  that  it  had  no  direct  or  material  bearing 
upon  the  main  question  in  the  case,  and  that  it  simply  tended 
to  prejudice  the  prisoner  by  proving  him  guilty  of  another 
and  separate  felony.  The  evidence  as  to  the  murder  was  cir- 
cumstantial, and  this  court  held  that  the  evidence  in  contro- 
versy was  proper  for  the  purpose  of  proving  a  motive  for  the 
murder.  In  that  case  the  evidence  showed  a  direct  and  logical 
connection  between  the  murder  of  the  deceased  and  its  perpe- 
tration by  the  prisoner.  It  showed  that  the  prisoner  had  a 
passion  for  the  possession  of  the  wife  of  the  deceased,  and  that 
for  the  purpose  of  obtaining  possession  of  her  person,  he  did 
commit  the  crimes  of  perjury  and  bigamy,  and  to  accomplish 
this  possession  of  the  woman,  the  taking  off  of  the  woman's 
husband  was  an  obvious  necessity.  The  motive  of  the  prisoner 
was  the  desire  for  the  woman,  and  the  strengtli  of  that  desire, 
in  other  words,  the  strength  of  the  motive  which  impelled  the 
murder,  was  shown  in  this  way. 

The  case  of  People  v.  Wood,  3  Park.  Cr.  681,  was  also 
cited.      That  was  a  special-term   case,  which  arose    upon 

AM.  St.  Rkp.,  vol.  I.  —66 


882  People  v.  Sharp.  [New  York, 

an  application  to  the  learned  justice  who  delivered  the  opin- 
ion for  a  stay  of  proceedings  upon  the  conviction  of  the 
defendant  for  murder.  Evidence  had  been  given  of  separate 
and  distinct  felonies  committed  by  the  prisoner  for  the  pur- 
pose of  showing  motive  on  his  part  in  the  killing  of  the 
deceased.  The  learned  court  held  that  the  evidence  was  ad- 
missible because  it  tended  to  show  with  other  evidence  that 
the  felonies  were  parts  of  a  single  transaction,  influenced  by 
a  single  motive  and  design  to  accomplish  a  single  object-;  that 
they  were  all  connected  by  unity  of  plot  and  design,  and  if 
proved,  would  tend  to  show  the  motive  which  actuated  the 
prisoner  in  taking  the  life  of  the  person  stated  in  the  indict- 
ment. In  that  case  the  evidence  tended  to  show  that  each 
felonious  act  was  a  necessary  one  for  the  purpose  of  carrying 
out  the  main  object  which  then  existed  in  the  mind  of  the 
prisoner,  and  that  all  of  them  formed  but  one  transaction  and 
were  connected  together  as  parts  of  one  whole. 

Now,  the  evidence  in  the  case  at  bar  was  of  no  such  character. 
At  the  time  of  its  alleged  occurrence  no  law  had  been  passed. 
It  did  not  appear  and  could  not  appear  that  at  that  time  any 
law  ever  would  be  passed.  It  was  an  act  remote  in  point  of 
time,  different  in  purpose,  and  of  an  entirely  separate  and 
distinct  matter,  forming  no  part  of  one  main  transaction,  and 
to  my  mind  coming  nowhere  near  the  standard  for  the  admis- 
sibility of  such  evidence,  pronounced  by  all  the  cases  which  I 
have  been  able  to  find. 

The  case  of  Stout  v.  People,  4  Park.  Cr.  132,  contains  the 
eame  general  principles.  There,  evidence  was  admitted  to 
the  effect  that  the  prisoner  was  seen  in  bed  with  the  wife  of 
the  man  he  was  charged  with  murdering,  although  such  wife 
was  also  the  prisoner's  sister,  and  it  was  admitted  as  furnish- 
ing a  motive  for  the  prisoner  to  get  the  husband  out  of  the 
way.  I  have  looked  at  the  other  cases  referred  to  by  th^ 
learned  counsel  for  the  prosecution,  and  find  that  they  come 
under  the  designation  of  one  or  the  other  of  the  classes 
already  referred  to.  Commonwealth  v.  Tuckerman,  10  Gray, 
173,  199,  was  a  case  of  embezzlement,  and  evidence  of  other 
embezzlements  from  the  same  party  during  a  series  of  years, 
and  contained  in  a  statement  made  by  the  prisoner,  was  ad- 
mitted. 

Commonwealth  v.  McCarthy,  119  Mass.  354,  was  an  indict- 
ment for  arson.  To  prove  the  intent  of  the  prisoner,  evidence 
was  received  that  on  two  prior  occasions  the  prisoner  had  set 


Nov.  1887.]  People  v.  Sharp.  883 

fire  to  a  shed  ten  feet  distant  from  the  building  destroyed, 
and  connected  therewith  by  a  flight  of  stairs.  This  had  a 
direct  tendency  to  prove  that  the  firing;  was  not  accidental, 
but  intentional  and  felonious. 

Commonwealth  v.  Bradford,  126  Mass.  42,  was  an  indictment 
for  arson,  and  the  same  class  of  evidence  was  received,  and  for 
the  same  purpose. 

Commonwealth  v.  Merriam,  14  Pick.  518,  25  Am.  Dec.  420, 
was  an  indictment  for  adultery.  Evidence  of  improper  famili- 
arity between  the  defendant  and  the  same  woman  shortly 
before  the  act  in  question  was  admitted.  The  evidence  was 
admitted  on  the  ground  that  intimacy  and  these  acts  of 
familiarity  with  the  same  woman  had  a  tendency  to  estab- 
lish the  fact  of  the  adultery  charged  in  the  indictment. 
Evidence  tending  to  show  previous  acts  of  indecent  familiarity 
would  have  a  tendency  to  prove,  in  the  case  of  the  same  wo- 
man, of  course,  a  breaking  down  of  all  the  safeguards  of  self- 
respect  and  modesty,  and  hence  a  gradual  preparation  of  the 
woman  to  lend  herself  to  the  commission  of  the  crime. 

The  case  of  People  v.  0' Sullivan,  104  N.  Y.  481,  58  Am.  Rep, 
530,  forms  no  precedent  for  the  admission  of  the  evidence  in 
this  case.  We  simply  held  that  upon  the  trial  of  the  defend- 
ant for  the  crime  of  rape  it  was  competent  to  prove  that  he 
had  attempted  to  commit  the  same  crime  upon  the  same  wo- 
man a  short  time  prior  thereto.  It  was  put  upon  the  ground 
that  upon  trial  of  a  person  for  a  particular  crime  it  is  always 
competent  to  show  upon  the  question  of  his  guilt  that  he  had 
made  an  attempt  at  some  prior  time,  not  too  remote,  to  com- 
mit the  same  ofiense.  It  was  said  further  that  it  would  be 
incompetent  to  prove  that  the  defendant  had  committed  or 
attempted  to  commit  a  rape  upon  any  other  woman.  And  it 
was  stated  that  upon  the  trial  of  a  prisoner  for  murder  it  is 
competent  to  show  that  he  had  made  previous  attempts  or 
threats  to  kill  his  victim,  and  hence  upon  the  same  principle 
it  was  held  that  when  charged  with  rape  it  was  competent  to 
show  that  the  defendant  had  previously  declared  his  inten- 
tion to  commit  the  offense,  or  made  an  unsuccessful  attempt 
to  do  so. 

In  the  case  of  Commonwealth  v.  Abbott,  130  Mass.  472,  upon 
an  indictment  for  murder,  proof  was  offered  on  the  part  of  the 
prisoner  of  former  ill  feeling  of  the  husband  of  the  deceased 
toward  the  deceased.  It  was  rejected  as  too  remote  and  dis- 
connected with  the  crime  charged;  particularly  as  there  was 


884  People  v.  Shakp.  [New  York, 

evidence  of  the  parties  living  together  on  good  terms  long  sub- 
sequent to  the  time  of  this  alleged  ill-feeling.  This  is  certainly 
no  precedent  for  the  admission  of  the  evidence  in  question  in 
the  case  at  bar. 

In  Commonwealth  v.  Jackson,  132  Mass.  16,  the  prisoner  was 
indicted  for  selling  property  by  false  representations  under 
the  Massachusetts  statute.  Evidence  of  sales  of  other  prop- 
erty of  a  like  nature  to  other  persons  under  representations 
proved  false  was  admitted  for  the  purpose  of  showing  the  in- 
tent with  which  the  representations  in  question  were  made. 
The  supreme  court  of  Massachusetts  held  that  the  evidence 
was  inadmissible,  and  that  for  the  error  of  its  admission  a  new 
trial  should  be  granted.  The  case  is  cited  only  for  the  pur- 
pose of  quoting  the  opinion  of  the  court  upon  the  danger  of 
this  kind  of  evidence. 

Devens,  J.,  writing  the  opinion,  said  that  "  the  other  state- 
ments made  by  the  defendant  at  other  times  as  to  the  other 
animals  which  he  sold  might  have  been  false,  while  those 
made  in  the  case  for  which  he  was  tried  were  not.  The  trans- 
actions formed  no  part  of  a  single  scheme  or  plan  any  more 
than  the  various  robberies  of  a  thief.  They  were  entered  upon 
as  from  time  to  time  he  might  succeed  in  entrapping  credulous 
or  unwary  persons.  Even  if  they  were  transactions  of  the 
same  general  character,  they  differed  in  all  their  details,  and 
the  defendant  was  compelled  to  defend  himself  against  three 
distinct  charges  in  addition  to  the  one  for  which  alone  he  was 
indicted.  Evidence  of  the  commission  of  other  crimes  by  a 
defendant  may  deeply  prejudice  him  with  the  jury,  while  it 
does  not  legally  bear  upon  his  case.  It  certainly  would  not  be 
competent,  in  order  to  show  the  intent  with  which  one  entered 
a  house,  or  took  an  article  of  personal  property,  to  prove  that 
he  had  committed  a  burglary  or  larceny  at  another  time." 
He  further  said  in  the  same  case:  "The  objections  to  the  ad- 
mission of  evidence  as  to  other  transactions,  whether  amount- 
ing to  indictable  crimes  or  not,  are  very  apparent.  Such 
evidence  compels  the  defendant  to  meet  charges  of  which  the 
indictment  gives  him  no  information,  confuses  him  in  his  de- 
fense, raises  a  variety  of  issues,  and  thus  diverts  the  attention 
of  the  jury  from  the  one  immediately  before  it,  and  by  show- 
ing the  defendant  to  have  been  a  knave  on  other  occasions  cre- 
ates a  prejudice  which  may  cause  injustice  to  be  done  him." 
I  think  the  remarks  are  very  pertinent  in  this  case.  The 
reasoning  herein  leads  to  the  exclusion  of  evidence  as  to  past 


Nov.  1887.]  People  v.  Sharp.  885 

offenses,  such  as  Pottle's  evidence  tends  to  prove,  whether  it 
is  directed  towards  proving  the  bribery  of  clerks  to  committees 
or  members  of  the  legislature  of  1883  or  1884. 

Upon  the  same  basis  it  is  difficult  to  see  the  materiality  or 
admissibility  of  the  evidence  that  the  prisoner,  after  the  pas- 
sage of  the  act  of  1884,  paid  to  Phelps  the  fifty  thousand  dol- 
lars, as  testified  to  by  Phelps.  The  evidence,  it  can  be  seen, 
had  a  tendency  to  greatly  prejudice  the  prisoner  upon  the  issue 
of  his  guilt  of  bribing  Fullgrafif,  while  wholly  inadmissible  for 
any  such  purpose,  and  it  would  seem  to  be  quite  questionable 
to  admit  it  for  the  purpose  of  proving  an  interest  in  a  Broad- 
way railroad,  about  which  there  could  be  and  was  no  dispute 
or  contradiction.  We  call  attention  to  the  question  without 
absolutely  deciding  it. 

We  are  quite  clear  that  errors  have  been  committed  by  the 
admission  of  evidence  in  this  case,  at  war  with  the  well-settled 
law  on  the  subject.  That  law  must  protect  all  who  come 
within  its  sphere,  whether  the  person  who  invokes  its  protec- 
tion seems  to  be  sorely  pressed  by  the  weight  of  the  inculpa- 
tory evidence  in  the  case  or  not.  It  cannot  alter  for  the 
purpose  of  securing  the  conviction  of  one  who  may  be  called 
or  regarded  as  a  great  criminal,  and  yet  be  invoked  for  the 
purpose  of  sheltering  an  innocent  man.  In  the  eye  of  the  law 
all  are  innocent  until  convicted  in  accordance  with  the  forms 
of  law,  and  by  a  close  adherence  to  its  rules. 

For  the  reasons  above  given,  as  well  as  upon  all  the  grounds 
so  well  stated  in  the  learned  opinion  of  my  brother  Danforth, 
I  am  in  favor  of  reversing  this  conviction,  and  granting  a  new 
trial. 

Judgment  reversed. 

POWKB  or  LxOtSLATUKK  TO  COHPZL  WlTN ERSES  TO  ATTEND  AND  SaBMIT 

TO  Examination.  —  "  Each  hoase  must  also  be  allowed  to  proceed  in  its  own 
way  in  the  collection  of  such  information  as  may  seem  important  to  a  proper 
discharge  of  its  functions,  and  whenever  it  is  deemed  desirable  that  witnesses 
should  be  examined,  tlie  power  and  authority  to  do  so  is  very  properly 
referred  to  a  committee,  with  any  such  powers  short  of  final  legislative  or 
judicial  action  as  may  seem  necessary  or  expedient  to  the  particular  case. 
Such  a  committee  has  no  authority  to  sit  during  a  recess  of  the  house  which 
has  appointed  it,  without  permission  to  that  effect;  but  the  house  is  at  liberty 
to  confer  such  authority  if  it  see  fit  A  refusal  to  appear  or  to  testify  before 
such  committee,  or  to  produce  books  or  papers,  would  be  a  contempt  of  the 
house;  but  the  committee  cannot  punish  for  contempts;  it  can  only  report 
the  conduct  of  the  offending  party  to  the  house  for  its  action":  Cooley'a 
Const  Lim.  164.  But  the  power  of  a  legislature  to  compel  the  attendance 
•f  witnesMS,  and  to  require  them  to  answer  questions,  is  limited  to  the  proper 


886 


White  v.  Kuntz. 


[New  York, 


subjects  of  legislative  inquiry  and  action.  If  a  witness  is  committed  for 
contempt  by  a  legislative  body,  any  court  before  which  he  is  brought  on 
habeas  corjnts  will  inquire  into  the  cause  of  his  commitment,  and  will  order 
his  release  if  his  imprisonment  is  improper.  As  was  said  by  the  supreme 
court  of  the  United  States  in  Kilboumv.  Thompson,  103  U.  S.  190:  "Whether 
the  power  of  punishment  in  either  house  by  fine  or  imprisonment  goes  beyond 
this  or  not,  we  are  sure  that  no  person  can  be  punished  for  contumacy  as  a 
witness  before  either  house,  unless  his  testimony  is  required  in  a  matter  into 
which  that  house  has  jurisdiction  to  inquire,  and  we  feel  equally  sure  that 
neither  of  these  bodies  possesses  the  general  power  of  making  inquiry  into 
the  private  affairs  of  the  citizen. " 
Witness,  Priyileob  or:  See  note  to  Friea  v.  Brttglert  21  Am.  Deo.  65-62. 


White  v,  Kuntz. 

[107  N«w  YoEK,  618.] 

AoozFTAiTCK  OF  Lesseb  Sttm  DOES  NOT,  Ordinarily,  bar  a  demand  for  a 
greater. 

CJoMPOsrrioN  of  Debtor  with  his  Creditors,  in  Which  Thet  Agree  to 
accept  less  than  their  entire  demands,  is  binding  on  them.  A  composi* 
tion  deed  is  in  its  spirit  an  agreement  between  the  creditors  themselves, 
as  well  as  between  them  and  their  debtor. 

Agreement  in  Favor  of  Creditor  Who  has  United  in  Cobtposition 
Deed,  whereby  he  is  to  obtain  any  advantage  over  the  other  creditors, 
to  which  they  did  not  assent,  is  void,  and  therefore  not  enforceable  by 
any  action. 

Composition  Agreement  is  Made  Void  as  against  All  Innocent  Par- 
ties thereto,  by  any  agreement  between  the  debtor  and  one  of  his  credi- 
tors whereby  the  latter  is  given  any  preference  over  the  others. 

Creditor  Guilty  of  Fraud  in  Composition  Agreement  by  stipulating 
for  a  secret  preference  in  favor  of  himself  is  bound  by  such  agreement, 
and  can  obtain  no  immunity  therefrom  by  proving  other  like  frauds  in 
such  agreement,  of  which  he  was  not  advised  at  the  time  of  its  execu- 
tion. 

Action  against  Joseph,  Louis  F.,  and  Michael  Kuntz.  The 
amended  complaint  stated  that  the  two  defendants  first 
named  were,  in  January,  1881,  indebted  to  plaintiff  on  two 
promissory  notes  in  the  sum  of  $18,164.64,  and  in  the  month 
of  April  following,  they  made  an  assignment  for  the  benefit  of 
creditors  to  their  father,  and  co-defendant  Michael  Kuntz; 
that  afterwards  a  composition  agreement  was  entered  into 
between  them  and  their  creditors,  whereby  the  latter  were  to 
accept  thirty-three  and  one  third  cents  on  the  dollar,  for  which 
notes  were  to  be  given  by  Joseph  and  Louis,  and  indorsed  by 
Michael  Kuntz;  that  pursuant  to  the  composition,  four  notes, 
aggregating  $6,043.78,  were  executed  and  delivered  to  plain- 
tiff;  that  to  induce  plaintiff  to  sign  such  composition,  the 


Dec.  1887.]  White  v.  Kuntz.  887 

defendant  Michael  previously  agreed  to  purchase  the  four 
notes,  and  pay  plaintiflf  $10,000  therefor;  that  on  being  ten- 
dered such  notes,  the  defendant  Michael  refused  to  purchase 
the  saD3e,  and  claimed  that  his  agreement  so  to  do  was  null 
and  void;  that  various  other  creditors  who  signed  such  com- 
position agreement  were  induced  to  do  so  by  promises  made 
by  said  Michael  to  pay  them  larger  sums  than  expressed  in 
such  agreement;  that  the  plaintiflf  now  brings  into  court,  and 
oflfers  to  surrender,  the  four  composition  notes  received  by  him, 
and  also  the  agreement  entered  into  between  him  and  the  said 
Michael.  Plaintiflf  asked  that  the  composition  agreement  be  set 
aside;  that  the  four  notes  given  him  be  canceled;  and  that  he 
have  judgment  for  the  amount  of  the  two  notes  originally  held 
by  him.  A  demurrer  interposed  to  this  complaint  was  eus- 
tained,  and  the  judgment  sustaining  it  was  affirmed  by  the 
general  term. 

A.  Blumenstiel,  for  the  respondents. 
William  Barnes,  for  the  appellant. 

By  Court,  Earl,  J.  It  is  a  general  rule  of  law  that  the  ac- 
ceptance of  a  lesser  sum,  or  an  agreement  to  accept  it,  does 
not  bar  a  demand  for  a  greater  sum.  There  is  an  exception 
to  this  general  rule,  however,  in  the  case  of  a  composition  by 
a  debtor  with  his  creditors,  in  which  they  agree  to  accept  less 
than  their  entire  demands.  Such  an  agreement,  if  entered 
into  by  a  debtor  with  a  number  of  his  creditors,  each  acting 
on  the  faith  of  the  engagement  of  the  others,  will  be  bind- 
ing upon  them,  for  each  in  that  case  has  the  undertaking  of 
the  rest  as  a  consideration  for  his  own  undertaking.  "Where 
creditors  thus  mutually  agree  with  each  other,"  says  Mr.  Jus- 
tice Daly,  in  Williams  v.  Carrington,  1  Hilt.  514,  519,  "the 
beneficial  consideration  to  each  creditor  is  the  engagement  of 
the  rest  to  forbear.  A  fund  is  thereby  secured  for  the  general 
advantage  of  all;  and  if  any  one  of  the  parties  were  allowed 
afterwards  to  enforce  his  own- claim,  it  would  operate  to  the 
detriment  of  the  other  creditors,  who  have  relied  upon  his 
agreement  to  forbear,  and  might  even  deprive  them  of  the  sum 
it  was  mutually  agreed  they  should  receive,  by  putting  it  out  of 
the  power  of  the  debtor  to  carry  out  the  composition."  "  Every 
composition  deed,"  says  Mr.  Justice  Duer,  in  Breck  v.  CoU,  4 
Sand.  79,  83,  "is  in  its  spirit,  if  not  in  its  terms,  an  agreement 
between  the  creditors  themselves,  as  well  as  between  them 


888  White  v.  Kuntz.  [New  York, 

and  the  debtor.  It  is  an  agreement  that  each  shall  receive 
the  sum  or  the  security  which  the  deed  stipulates  to  be  paid 
and  given,  and  nothing  more;  and  that,  upon  this  considera- 
tion, the  debtor  shall  be  wholly  discharged  from  all  the  debts 
then  owing  to  the  creditors  who  sign  the  deed."  It  is,  there- 
fore, held  that  every  agreement  made  by  one  creditor  for  some 
advantage  to  himself  over  other  creditors,  who  unite  with  him 
in  a  composition  of  their  debts,  is  fraudulent  and  void.  Sa 
scrupulous  are  courts  in  compelling  creditors  to  the  observ- 
ance of  good  faith  toward  one  another  in  cases  of  this  kind, 
that  any  security  taken  for  an  amount  beyond  the  composition 
agreed  upon,  or  even  for  that  sum,  better  than  that  which  is- 
common  to  all,  if  unknown  at  the  time  to  the  other  creditors, 
is  void  and  inoperative;  and  no  contract  to  pay  money  or  da 
any  other  valuable  thing,  and  no  security  given  upon  any 
such  promise,  whereby  a  creditor  obtains  an  advantage  pecu- 
liar to  himself,  can  be  enforced:  Russell  v.  Rogers,  10  Wend. 
474, 479;  25  Am.  Dec.  574. 

Hence  the  agreement  on  the  part  of  Michael  Kuntz  made 
with  the  plaintiff,  without  the  knowledge  and  consent  of  the 
other  creditors,  to  pay  him  ten  thousand  dollars  for  the  four 
notes  amounting  to  about  six  thousand  dollars,  was  fraudulent 
and  void  and  cannot  be  enforced.  And  the  composition  agree- 
ment as  to  all  the  innocent  parties  thereto  was  absolutely  void, 
and  they  were  left  with  the  right  to  enforce  their  original 
claims  as  if  they  had  never  signed  the  agreement.  If  the 
plaintiff,  therefore,  were  an  innocent  party,  and  guilty  of  no 
fraud,  he  could,  first  repudiating  the  agreement,  have  com- 
menced an  action  at  law  upon  his  original  notes,  and  have 
recovered  judgment  thereon,  and  the  composition  agreement, 
would  have  been  no  defense  as  to  him.  But  he  is  not  an  inno- 
cent party.  He  was  himself  guilty  of  the  very  fraud  of  which 
he  complains,  and  he  cannot  therefore  allege  that  he  was  in- 
duced to  enter  into  the  composition  in  consequence  of  any 
fraud  practiced  upon  him.  He  executed  the  composition 
agreement  knowing  that  there  was  not  to  be  equality  among 
the  creditors,  and  hence  he  cannot  be  permitted  to  complain 
that  there  was  not  such  equality.  Having  himself  taken  a 
fraudulent  advantage,  he  cannot  set  up  that  other  creditors 
also  took  a  fraudulent  advantage.  Having  made  the  best 
bargain  he  could  for  himself,  he  cannot  complain  that  other 
creditors  did  the  same.  The  only  persons  who  can  complain 
of  these  frauds  are  the  innocent  parties  to  the  agreement. 


Dec.  1887.]  White  v.  Kuntz.  889 

What,  then,  are  the  rights  of  the  plaintiff  in  the  dilemma  in 
which  he  has  been  placed  ?  He  has  not  forfeited  all  ckims 
upon  his  debtors,  and  there  is  no  ground  upon  which  he  can 
be  deprived  of  all  remedy  against  them.  He  must  either  have 
the  composition  notes  or  his  original  notes.  If  as  to  him  the 
composition  should  be  held  fraudulent  and  void,  then  he  could 
not  enforce  the  composition  notes,  but  would  inevitably  be  left 
with  his  action  upon  his  original  notes.  Having  by  his  signa- 
ture to  the  composition  induced  other  innocent  creditors  to  sign 
also  in  the  belief  that  all  the  creditors  were  to  be  treated  alike, 
while  in  fact  he  was  to  receive  a  large  advantage  over  them,  he 
perpetrated  one  fraud  upon  them;  and  if  he  could  now  avoid 
the  composition  agreement  as  to  him,  and  enforce  his  original 
notes  for  their  full  amount,  he  would  perpetrate  another  fraud 
upon  them,  and  take  a  still  further  advantage  of  them  by 
depleting  the  very  fund  out  of  which  alone  perhaps  the  debtors 
would  be  able  to  fulfill  the  composition  on  their  part.  This  he 
should  not  be  permitted  to  do,  and  to  defeat  such  an  unjust 
result  he  should  be  held  to  the  composition  and  his  remedy 
upon  the  composition  notes.  The  courts  would  not  as  between 
the  parties  guilty  of  the  fraud,  if  their  interests  alone  were-  to 
be  affected,  enforce  or  relieve  from  the  composition  agreement. 
But  they  will  see  to  it,  so  far  as  they  can,  that  the  innocent 
parties  are  not  made  the  victims  of  a  double  fraud,  and  this 
they  will  accomplish  by  holding  the  guilty  parties  to  the  com- 
position agi cement;  and  so  it  was  held  in  Mallalieu  v.  Ilodg- 
eon,  16  Ad.  &  E.,  N.  S.,  690,  a  case  quite  analogous  to  this. 
There,  as  here,  the  plaintiff,  before  signing  a  composition  agree- 
ment, stipulated  for  a  secret  advantage  to  himself,  and  so  did 
some  of  the  other  creditors  unknown  to  him,  while  it  was  rep- 
resented to  him  by  the  debtors  that  all  the  other  creditors  were 
to  have  no  more  than  the  composition  agreed  upon.  Earl,  J., 
said:  "  Here  the  plaintiff,  having  received  the  composition  and 
the  value  of  the  preference,  which  was  a  fraud  upon  the  other 
creditors,  is  seeking  to  gain  a  further  exclusive  advantage  to 
himself,  also  in  fraud  of  them,  by  suing  for  the  balance  of  his 
original  debt,  after  allowing  for  the  composition  and  the  value 
of  the  preference,  and  claims  to  avoid  his  release  on  the  ground 
that  he  was  induced  by  the  defendants  to  believe  that  he  alone 
was  fraudulently  preferred,  whereas  some  other  creditors  had 
also  obtained  some  unjust  advantage.  But  a  deed  is  not  to  be 
avoided  on  the  ground  of  a  fraudulent  misrepresentation,  un- 
less the  matter  misrepresented  was  a  material  inducement  to 


890    .  White  v.  Kuntz.  [New  York, 

the  execution  of  the  deed."  Coleridge,  J.,  said:  "  As  the  plain- 
tiflf  was  himself,  in  the  transaction  of  the  composition  and  re- 
lease, guilty  of  fraud  in  respect  to  the  other  compounding 
creditors,  by  stipulating  for  a  preference  to  himself,  he  is  not 
at  liberty  to  insist  on  the  fraud  at  the  same  time  practiced  on 
himself;  nor,  indeed,  to  say  that  it  is  any  fraud  which  induced 

him  to  enter  into  the  composition The  plaintiff  in  this 

case  has  entered  into  an  arrangement  for  the  compounding  of 
his  claim  on  the  defendants,  which  is  fraudulent  as  regards 
the  other  creditors.  He  has  received  the  composition  notes, 
and  has  executed  a  release;  but  he  now  resorts  to  his  original 
demand,  and  is  thereupon  met  by  a  plea  of  the  release.  Prima 
Jacie  the  release  is  an  answer  to  the  action,  because  to  allow 
the  plaintiff  now  to  recover  for  his  whole  original  demand 
would  be  a  fraud  on  the  other  creditors  who  have  come  into 
the  composition  on  the  faith  of  the  plaintiffs  being  a  party 
to  it." 

As  to  the  secret  advantage  given  to  some  of  the  other  credi- 
tors to  induce  them  to  sign  the  composition,  the  learned  judge 
further  said:  *'The  plaintiff  has  stipulated  and  obtained  a 
preference  for  himself  which,  for  the  reason  I  have  stated, 
will  not  vitiate  the  release  as  against  himself,  and  it  appears 
to  me  that  the  having  given  a  preference  to  others  was  also  no 
fraud  upon  the  plaintiff.  A  mere  misrepresentation  by  the 
defendants  of  a  fact  not  material  to  the  plaintiff  would  not 
sustain  the  issue,  and  the  only  way  in  which  the  misrepre- 
sentation could  be  material  to  the  plaintiff  would  be  inas- 
much as  the  defendants  might  be  rendered  the  less  able  to 
carry  into  execution  the  fraudulent  preference  to  himself  by 
having  bound  themselves  to  act  similarly  by  others.  But  he 
had  no  right  to  have  that  preference  carried  into  execution, 
and  therefore  is  not  in  law  prejudiced  by  a  failure  in  regard 
to  it.  The  whole  consideration  for  his  release  is  the  fraudu- 
lent preference  promised  to  himself,  and  the  withholding  any 
such  preference  from  other  creditors.  He  cannot  allege  the 
former  as  a  fraud  on  himself  to  vitiate  the  release,  for  he  is 
particeps  fraudis,  and  the  latter  is  so  entirely  mixed  up  with 
it,  deriving  all  its  materiality  from  it,  that  the  same  disability 
seems  to  exist  as  to  it." 

The  plaintiff  is,  therefore,  in  a  position  where  he  is  not 
permitted  to  allege  that  the  composition  agreement  is  in- 
valid, and  he  cannot,  therefore,  enforce  his  original  notes. 
His  only  remedy  against  the  defendants  is  upon  the  composi- 
tion notes. 


Dec.  1887.]  Hayes  v.  Nourse.  891 

Hence  it  is  quite  clear  that  this  complaint  does  not  state  a 
cause  of  action  against  the  defendants,  or  any  of  them.  The 
plaintiff,  upon  familiar  principles,  could  not  come  into  court  and 
ask  to  have  the  agreement  of  Michael  Kuntz,  dated  the  twenty- 
eighth  day  of  April,  1881,  canceled.  That  agreement  was 
fraudulent  and  void,  and  the  parties  thereto  were  in  pari  delicto^ 
and  the  courts  would  not  aid  either  of  them  to  enforce  or  can- 
cel it.  Besides,  that  agreement  does  not  bind  him  to  anything, 
and  if  he  desires  to  be  rid  of  it  he  can  tear  it  up,  and  he  does 
not  need  the  aid  of  any  court.  For  reasons  already  stated,  the 
court  would  not  vacate  the  composition  agreement,  as  that  is 
binding  upon  the  plaintiff.  The  court  would  not  cancel  the 
composition  notes  and  authorize  the  plaintiff  to  surrender 
them  to  the  defendants  because  they  are  valid.  The  court 
could  not,  for  reasons  already  stated,  give  the  plaintiff  judg- 
ment upon  the  original  notes,  because  they  are  released  and 
discharged  by  the  composition  agreement.  The  court  could 
not  under  this  complaint,  as  it  now  stands,  render  judgment 
upon  the  composition  notes,  because,  besides  other  obstacles, 
at  the  commencement  of  this  action  neither  one  of  them  was 
due. 

The  judgment  should  be  affirmed,  with  costs. 

Judgment  affirmed. 

CoBfPosmoN  Deed  between  Debtor  and  his  Creditoiw,  whereby  the 
latter  agree  with  him  and  with  one  another  to  release  him  on  the  payment  of 
a  specified  snm,  which  ia  less  than  the  amount  due  them,  is  valid,  and  neither 
of  them  can  subsequently  maintain  an  action  against  him  for  a  claim  included 
in  such  deed:  Rusaell  v.  Rogers,  25  Am.  Dec.  574.  But  any  private  agreement 
by  which  one  of  the  creditors  shall  receive  a  larger  sum  than  the  others  ia 
fraudulent  and  void:  WiUiavia  v.  Schrdber,  14  Him,  40;  Kellogg  v.  Richardt, 
14  Wend.  118;  Ramadellv.  Edgarton,  41  Am.  Dec.  603,  and  note. 


Hayes  v.  Nourse. 

[107  Niw  YOB«,  677.1 
Right  or  Appeal  is  not  Waited  by  paying  the  judgment. 

Motion  to  dismiss  an  appeal  as  irregular  and  void,  for  the 
reason  that  the  judgment  from  which  said  appeal  purported 
to  be  taken  was  satisfied  of  record  before  the  service  of  notice 
of  appeal.  The  plaintiff  recovered  a  judgment  against  the  de- 
fendant in  the  court  of  common  pleas  on  April  4,  i&87,  from 
which  the  defendant  appealed  to  the  general  term  of  said 


892  Hayes  v.  Nourse.  [New  York, 

court,  where  the  judgment  was  aflBrmed,  and  on  June  10,  1S87, 
a  judgment  of  afHrmance  thereof,  and  for  the  costs  of  said  ap- 
peal, was  entered.  On  June  15th,  the  defendant  voluntarily 
paid  both  of  said  judgments,  applied  to  plaintiff's  attorney 
for  and  received  acknowledgments  of  satisfaction,  and  on  the 
same  day  filed  the  same  and  caused  said  judgments  to  be 
satisfied  of  record.  No  process  had  been  issued  or  proceeding 
taken  to  enforce  payment  of  said  judgments.  On  September 
27,  1887,  the  defendant  served  notice  of  appeal  to  this  court. 

Arthur  P.  Hilton^  for  the  motion. 

Strong  and  Cadwaladei ,  opposed. 

By  Court,  Danforth,  J.  The  defendant's  practice  in  pay- 
ing the  judgment  before  appealing  from  it  is  not  to  be  con- 
demned. It  is  rather  to  be  encouraged.  A  party  who  recovers 
at  the  trial  term,  and,  against  his  adversary's  appeal,  sustains 
the  recovery  at  the  general  term,  might  fairly  be  deemed  enti- 
tled to  the  fruits  of  his  action  without  further  delay.  The 
law,  however,  allows  one  more  appeal,  but  although  it  is 
taken,  the  successful  party  may,  nevertheless,  enforce  his 
judgment  by  execution,  and  so  collect  its  award,  unless  the 
defeated  party  secures  its  ultimate  payment  by  a  deposit  of 
money  or  an  undertaking.  Why  may  he  not  simplify  the 
matter  by  placing  the  funds  at  once  in  the  hands  of  the  party, 
who,  if  the  appeal  fails,  will  be  ultimately  entitled  to  them? 
By  so  doing  he  will  save  the  costs  of  execution,  and  do  no 
harm  to  his  creditor.  We  think  he  should  not,  by  a  tempo- 
rary submission  to  the  decision  of  the  court,  be  placed  in  a 
worse  position  than  if  he  awaited  execution  and  settled  it  with 
sherifis'  fees.  In  Dyett  v.  Pendleton,  8  Cow.  326,  an  execu- 
tion had  in  fact  issued,  but  the  court  held  that  even  a  volun- 
tary payment  of  the  judgment  would  have  been  no  reason 
against  a  writ  of  error;  and  in  a  subsequent  case,  Clowes  v. 
Dickenson,  8  Cow.  328,  Spencer,  senator,  referring  to  the  decis- 
ion just  cited,  says:  "I  feel  confirmed,  on  reflection,  that  no 
matter  how  the  money  is  paid  or  collected,  this  cannot  aflfect 
the  right  to  try  error  on  appeal." 

To  the  same  effect  are  many  subsequent  decisions,  and  it 
must  be  deemed  too  well  settled  by  authority  to  require  fur- 
ther discussion  that  a  party  against  whom  a  judgment  has 
been  rendered  is  not  prevented  from  appealing  to  this  court 
by  the  fact  that  he  has  paid  the  judgment,  unless  such  pay- 


Jan.  1888.]  People  v.  Squire.  893 

ment  was  by  way  of  compromise,  or  with  an  agreement  not  to 
take  or  pursue  an  appeal:  1  Code  Rep.,  N.  S.,  415,  Court  of  Ap- 
peals, 1852;  Sheridan  v.  Mann,  5  How.  Pr.  201.  The  statute 
giving  the  right  to  appeal  only  requires  that  the  judgment  in 
question  shall  be  final:  Code,  sec.  190;  that  the  appeal  shall 
be  taken  within  one  year  after  it  is  entered:  Sec.  1325;  and, 
anticipating  such  a  case  as  that  now  presented,  provides  that 
if  the  judgment  appealed  is  reversed,  the  appellate  court  may 
make  or  compel  restitution.  The  same  rule  prevailed  before 
the  code,  and  it  was  applied  whether  the  judgment  was  paid 
before  or  after  a  writ  of  error  brought.  The  only  difference 
was  in  the  manner  of  proceeding  to  inform  the  court  of  the 
facts  on  which  the  right  to  restitution  depended:  Tidd's  Prac- 
tice, 1033,  1034;  Sheridan  v.  Mann,  supra. 

The  appellant's  practice  has  been  regular,  and  the  motion 
to  dismiss  the  appeal  should  be  denied,  with  ten  dollars  costs. 

Motion  denied. 

Waiver  of  Right  op  Appeal.  —  The  general  rule  upon  the  subject  of  the 
waiver  of  the  right  of  appeal  is  in  harmony  with  the  principal  case,  and  ia  to 
the  effect  that  the  payment  of  or  other  compliance  with  a  judgment  does 
sot  extinguish  nor  impair  the  right  of  appeal:  Clark  v.  Ostrander,  13  Am. 
Deo.  646. 


People  v.  Squire. 

1107  New  Yoek.  698.J 

CJONsnTonoNAL  Law  —  Local  Law,  —  Statute  relating  to  cities  of  more 
than  five  hundred  thousand  inhabitants  is  not  a  local  or  private  law. 

Law  is  not  Private  or  Local  Law,  although  it  may  happen  that  the 
persons  or  companies  whose  operations  are  controlled  by  such  law  are 
few  in  number,  and  all  doing  business  in  one  or  more  cities  of  the  state. 

CoNSTrrunojiAL  Law.  —  Statute  Which  Provides  Methods  to  Carry 
OUT  and  more  conveniently  or  adequately  enforce  a  prior  statute,  without 
inserting  the  latter  statute  as  a  part  of  its  provisions,  is  not  forbidden  by 
section  17  of  article  3  of  the  constitution  of  New  York,  declaring  that 
"no  act  shall  l>e  passed  which  shall  provide  that  any  existing  law,  or 
any  part  thereof,  shall  bo  made  or  deemed  a  part  of  said  act,  or  which 
shall  enact  that  any  existing  law,  or  any  part  thereof,  shall  be  applicable, 
except  by  inserting  it  in  such  act." 

Constitutional  Law.  —  Statute  does  not  Impose  Tax  which  requires  of 
corporations  the  performance  of  certain  duties,  the  expenses  of  which 
are  to  be  paid  in  the  first  instance  by  the  state,  but  are  to  be  refunded 
by  the  corporation. 

DHOONSTITUTIONAL    PROVISION    IN     StaTUTB    WhICH    MAT    BB    ElIMINATKD 

without  impairing  the  general  scheme  of  the  act  vitiates  so  much  of  the 
■tatute  only  as  may  bo  declared  unconstitutional. 


894  People  v.  Squtee.  [New  York, 

Statute  is  not  Unconstitutional  Which  Reqitiiiks  Corporations  Owit- 
iNO  Telegraph,  Telephone,  Electric,  or  other  wires  or  cables  to 
remove  them  from  the  surface  of  the  streets  and  place  them  under 
the  ground,  and  in  the  event  of  their  not  doing  so,  empowering  the  city 
to  make  such  removal  at  their  expense;  and  which  further  provides  that 
three  commissioners  shall  be  appointed  to  enforce  the  provisions  of  the 
statute  by  causing  the  removal  of  the  wires  and  cables;  and  imposes  on 
the  companies  the  duty  of  filing  with  such  commissioners  a  map,  showing 
the  streets  or  highways  which  the  companies  desire  to  use,  and  the  general 
location,  dimensions,  and  course  of  the  underground  conduits  desired  to 
be  constructed,  and  forbids  the  construction  of  such  conduits  unless  the 
plan  of  construction  is  approved  by  such  commissioners.  These  statu- 
tory provisions  do  not  impair  pre-existing  franchises,  but  merely  regulate 
the  mode  of  their  enjoyment,  to  the  end  that  due  regard  may  be  had  to 
the  rights  of  others,  and  in  such  a  way  that  the  wires  and  cables  should 
cease  to  be  a  public  nuisance,  and  be  enjoyed  in  such  a  manner  as  to 
inconvenience  and  endanger  the  public  as  little  as  possible. 

Primary  Object  of  Public  Streets  and  Highways  is  to  furnish  a  pas- 
sage-way for  travelers  in  vehicles  or  on  foot;  and  while  they  may  be  put 
to  numerous  other  uses,  such  uses  must  be  enjoyed  in  subordination  to 
this  primary  object. 

Power  to  Control  Public  Streets,  and  to  Provide  for  Proper  Ad- 
justment of  conflicting  rights  and  interests  therein,  is  a  police  power, 
the  exercise  of  which  may  be  delegated  to  municipal  corporations. 

Police  Power  op  State  Embraces  its  system  of  internal  regulation  by 
which  it  is  sought  to  preserve  the  public  order,  and  to  prevent  offenses 
against  the  state,  and  also  to  establish,  for  the  intercourse  of  citizen  with 
citizen,  those  rules  of  good  manners  and  good  neighborhood  which  are 
calculated  to  prevent  a  conflict  of  rights,  and  to  insure  to  each  the  unin* 
terrupted  enjoyment  of  his  own,  so  far  as  is  reasonably  consistent  with 
a  like  enjoyment  of  rights  by  others. 

Right  to  Exercise  Police  Power  cannot  be  Alienated,  surrendered,  or 
abridged  by  the  legislature  by  any  grant,  contract,  or  delegation  what- 
soever. Hence  no  legislative  grant  can  confer  upon  any  corporation 
beyond  the  control  of  subsequent  legislative  action  the  power  to  tear  up 
the  streets  of  a  city  at  such  times,  in  such  places,  and  under  such  cir- 
cumstances as  such  corporation  may  determine,  regardless  of  the  public 
convenience  and  welfare  and  the  rights  of  other  claimants. 

Application  for  a  writ  of  mandate,  brought  in  the  name  of 
the  people  of  the  state,  on  the  relation  of  the  New  York  Elec- 
tric Lines  Company,  against  Rollin  M.  Squire,  commissioner 
of  public  works  of  the  city  of  New  York,  to  compel  him  to 
grant  a  permit  to  make  excavations  in  the  streets,  for  the  pur- 
pose of  laying  wires.  The  writ  was  denied  by  the  special 
term  of  the  court  of  common  pleas,  and  the  order  of  denial 
was  affirmed  by  the  general  term. 

David  Leventritt,  for  the  appellant. 
D.  J.  Dean,  for  the  respondent. 


Jan.  1888.]  People  v.  Squire.  895 

By  Court,  Ruger,  C.  J.  The  relator  was  incorporated  in 
1882  for  the  purpose  of  "  owning,  constructing,  using,  main- 
taining, and  leasing  lines  of  telegraph  wires  or  other  electric 
conductors  for  telegraphic  and  telephonic  communication,  and 
for  electric  illumination,  to  be  placed  under  the  pavements  of 
the  streets,"  etc.,  in  the  counties  of  New  York  and  Kings. 
Their  organization  was  eflfected  under  chapter  265  of  the  laws 
of  1848,  which,  by  a  general  law,  authorized  the  formation  of 
corporations  of  that  character,  and  in  1883  it  applied  to  and 
received  from  the  common  council  of  the  city  of  New  York, 
by  virtue  of  the  power  conferred  upon  such  council  by  chapter 
397  of  the  laws  of  1879,  permission  to  construct  conduits  and 
lay  wires  in  certain  streets  of  New  York,  under  certain  con- 
ditions named  in  the  ordinances,  which,  among  other  things, 
required  that  such  work  should  be  performed  under  the  con- 
trol and  supervision  of  the  commissioner  of  public  works. 
The  relator,  in  1883,  also  filed  with  the  clerk  of  New  York 
County  certain  maps,  plans,  and  tabular  statements,  as  required 
by  the  ordinance,  and  proceeded  to  collect  the  material  and 
equipments  necessary  to  build  its  structures  and  transact  its 
business.  No  further  progress  seems  to  have  been  made  by 
the  relator  until  July,  1886,  when  application  was  made  by  it, 
to  the  department  of  public  works  of  New  York,  for  permis- 
sion to  open  some  of  the  streets  in  the  city,  for  the  purpose  of 
laying  therein  its  wires  and  conductors.  This  permission  was 
refused  upon  the  ground  that  the  relator  had  not  obtained  the 
approval  of  the  subway  commissioners  of  New  York  to  its 
plans  and  construction. 

This  proceeding  was  brought  to  obtain  a  peremptory  man- 
damus requiring  the  commissioner  of  public  works  to  grant  a 
permit  to  the  relator,  authorizing  it  to  excavate  in  the  streets 
of  the  city  to  enable  it  to  construct  conduits  and  lay  electric 
wires  and  conductors  therein.  The  application  was  denied  at 
special  term,  and  the  general  term,  upon  appeal  to  that  court, 
aflfirmed  the  order  denying  the  writ.  Section  1  of  chapter 
534  of  the  laws  of  1884,  provides  that  "  all  telegraph,  tele- 
phonic, and  electric-light  wires  and  cables  used  in  any  incor- 
porated city  of  this  state,  having  a  population  of  five  hundred 
thousand  or  over,  shall  hereafter  be  placed  under  the  surface 
of  the  streets,  lanes,  and  avenues  of  said  city."  Section  2 
requires  that  "  every  corporation  ....  owning  or  controlling 
telegraph,  telephone,  electric,  or  other  wires  or  cables,  .... 
shall,  before  the  first  day  of  November,  1885,  have  the  same 


896  People  r.  Squire.  [New  York, 

removed  from  the  surface  of  all  streets  or  avenues  in  every 
such  city  of  this  state";  and  section  3  provides  that  in  case 
the  owners  of  such  property  do  not  comply  with  the  provisions 
of  the  act  within  the  time  limited,  the  local  governments  of 
the  said  cities  shall  cause  such  wires,  etc.,  to  be  reipoved  and 
placed  underground.  These  provisions  do  not  seem  to  have 
been  impaired  in  any  material  respect  by  the  subsequent 
legislation  of  1885  and  1886,  and  by  express  terms  the  act 
applies  as  well  to  existing  companies  as  those  thereafter  to  be 
formed. 

By  chapter  499,  laws  of  1885,  it  was  provided  that  three 
persons  should  be  appointed  to  constitute  a  board  of  commis- 
sioners of  electrical  subways  in  cities  having  a  population  ex- 
ceeding five  hundred  thousand.  By  section  2  such  boards  were 
charged  with  the  responsibility  of  enforcing  the  provisions  of 
the  act  of  1884,  and  it  was  made  their  duty  to  cause  to  be  re- 
moved from  the  surface  of  the  streets,  etc.,  all  wires  and  cables 
used  in  the  business  of  such  electric  companies,  and  to  put 
them  underground,  wherever  practicable,  and  cause  them  to 
be  there  operated  and  maintained,  and  said  act  of  1884  was 
declared  to  be  amended  to  conform  to  the  provisions  of  this 
act.  Section  3  of  said  act  provided  that  "  when  any  company 
operating  or  intending  to  operate  electrical  conductors  in  any 
such  city  shall  desire  or  be  required  to  place  its  conductors 
or  any  of  them  underground,  ....  it  shall  be  obligatory  upon 
such  corporation  to  file  with  said  board  of  commissioners  a 
map  or  maps,  made  to  scale,  showing  the  streets  or  avenues 
or  other  highways  which  are  desired  to  be  used  for  such  pur- 
pose, and  giving  the  general  location,  dimensions,  and  course 
of  the  underground  conduits  desired  to  be  constructed.  Before 
any  such  conduits  shall  be  constructed,  it  shall  be  necessary 
to  obtain  the  approval  of  said  board,  of  said  plan  of  construc- 
tion so  proposed  by  such  company."  By  section  10  "  all  acta 
and  parts  of  acts  inconsistent  herewith  are  hereby  repealed." 

These  acts  seem  to  have  been  intended  to  apply  to  all  com- 
panies, and  to  whatever  stage  of  their  organization  they  may 
have  reached.  It  is  not  claimed  by  the  relator  that  it  has 
ever  filed  with  the  board  of  commissioners  its  maps  and  plans, 
as  required  by  said  act,  or  that  it  has  obtained  from  them  an 
approval  of  such  maps,  etc.,  and  it  is  therefore  clear  that  section 
3  of  the  act  of  1885  constitutes  an  insuperable  objection  to  the 
relator's  application,  unless  for  some  reason  it  be  adjudged  to 
be  void  for  unconstitutionality. 


Jan.  1888.]  People  v.  Squire.  897 

The  relator  has  met  this  question  squarely,  and  challenges  the* 
constitutionality  of  the  act  upon  several  grounds,  which  may 
be  summarized  as  follows:  1.  That  it  violates  section  16  of 
article  3,  in  that  it  is  a  local  bill,  and  embraces  more  than  one 
subject  not  expressed  in  its  title;  2.  That  it  violates  section 
17  of  article  3,  providing  that  "  no  act  shall  be  passed  which 
shall  provide  that  any  existing  law,  or  any  part  thereof,  shall 
be  made  or  deemed  a  part  of  said  act,  or  which  shall  enact 
that  any  existing  law,  or  any  part  thereof,  shall  be  applicable, 
except  by  inserting  it  in  such  act";  3.  That  said  act  levies  a 
tax  upon  such  companies,  in  that  it  is  provided  that  the  cost 
and  expenses  of  such  board  of  commissioners  are  authorized 
to  be  assessed  by  the  comptroller  of  the  state,  when  paid  by 
him,  upon  the  several  companies  operating  electrical  conduc- 
tors in  any  such  city  of  the  state,  which  shall  be  required  to 
place  and  operate  its  conductors  underground;  4.  That  if  said 
act  of  1885  applied  to  the  relator,  it  was  unconstitutional,  as 
it  impaired  the  rights  which  it  had  secured  by  virtue  of  the 
grant,  from  the  authorities  of  New  York  to  construct  conduits 
and  lay  wires  and  conductors  in  the  streets  of  that  city,  and 
its  acceptance  thereof. 

We  are  of  the  opinion  that  none  of  the  points  taken  by  the 
appellant  are  tenable.  It  is  convenient  to  consider  these  ques- 
tions in  the  order  in  which  they  have  been  stated. 

1.  The  act  referred  to  is  not  subject  to  the  condemnation 
expressed  in  section  16,  article  3,  for  the  reason  that  it  is 
neither  a  private  or  local  bill,  nor  does  it  embrace  more  than 
one  subject.  The  three  acts  of  1884,  1885,  and  1886  all  relate 
to  the  same  subject;  viz.,  that  of  placing  all  electrical  wires 
and  conductors,  in  cities  exceeding  five  hundred  thousand 
population,  under  the  surface  of  streets,  etc.,  subject  to  the 
control  of  the  local  authorities;  and  no  provision  is  incorpo- 
rated in  either  of  these  acts  which  is  not  strictly  incidental  to 
the  general  object  intended  to  be  accomplished.  They  relata 
simply  to  the  mode  and  manner  in  which  the  provisions  of  the 
several  acts  in  relation  to  the  location  and  removal  of  electri- 
cal wires  and  conductors  shall  be  applied  and  enforced,  and 
constitute  but  one  subject  of  legislation. 

Neither  is  the  act  a  local  or  private  one,  within  the  meaning 
of  the  section  referred  to.  Such  was  the  decision  of  this  court 
in  In  the  MatUr  of  New  York  EUvaUd  R.  R.  Co.,  70  N.  Y.  327, 
and  In  the  Matter  of  Church,  92  Id.  1.  This  act  is  general  in 
ita  terms,  applying  to  all  cities  in  the  state  of  a  certain  claaa, 

AM.  St.  Rep.,  VouL-67 


898  People  v.  Squire.  [New  Yorjc, 

and  to  every  corporation  carrying  on  a  business  requiring  the 
use  of  electrical  wires  or  conductors  in  such  cities.  That  the 
number  of  such  cities  is  limited  or  restricted  does  not  make 
the  bill  a  private  or  local  one,  within  the  constitutional  mean- 
ing and  intent  of  these  words,  was  expressly  decided  in  the 
cases  referred  to. 

How  many  companies  there  are  to  which  this  bill  applies 
we  have  no  means  of  determining;  but  the  fact  that  a  general 
law  is  passed  regulating  the  operations  of  all  such  companies, 
in  cities  of  the  class  referred  to,  does  not  constitute  it  a  private 
or  local  bill,  although  it  may  happen  that  such  companies  are 
all  located  in  one  or  more  cities  of  the  state. 

2.  Neither  do  we  think  the  act  obnoxious  to  the  objection 
that  it  incorporates  in  its  provisions  a  prior  act  without  insert- 
ing such  act  therein.  The  act  is  neither  within  the  letter  or 
spirit  of  the  constitutional  provision.  There  was  no  attempt 
to  re-enact  the  law  of  1884  by  the  law  of  1885.     The  act  of 

1884  was  a  law  by  the  force  of  its  own  enactment,  and  so  con- 
tinues.    It  has  never  been  repealed  or  re-enacted.     The  act  of 

1885  treats  that  of  1884  as  a  valid  and  existing  law,  and  pur- 
ports simply  to  provide  methods  by  which  it  may  be  more 
conveniently  carried  out  and  enforced.  It  might  be  better, 
perhaps,  to  have  all  laws  relating  to  this  subject  incorporated 
in  a  single  act;  but  I  apprehend  it  is  no  objection  to  a  law, 
under  the  constitution,  that  other  laws  on  the  same  subject 
exist  in  other  volumes  of  the  statutes,  or  that  the  arrangement 
and  location  of  such  laws  are  faulty,  or  perhaps  intricate  and 
awkward,  or  involve  labor  and  trouble  to  determine  what  in 
fact  the  law  is.  The  object  and  intent  of  the  constitutional 
provision  was  to  prevent  statute  laws  relating  to  one  subject 
from  being  made  applicable  to  laws  passed  upon  another  sub- 
ject, through  ignorance  and  misapprehension  on  the  part  of 
the  legislature,  and  to  require  that  all  acts  should  contain 
within  themselves  such  information  as  should  bo  necessary  to 
enable  it  to  act  upon  them  intelligently  and  discreetly.  It  is 
obvious  that  it  does  not  apply  to  an  act  purporting  to  amend 
existing  laws,  for  in  such  a  case  no  intelligent  legislation 
could  be  had  at  all  without  a  knowledge  of  the  law  intended 
to  be  amended.  It  must  be  presumed  that  the  legislature  is 
informed  of  the  condition  of  a  law  which  it  is  called  upon  to 
amend.  It  could  never  have  been  contemplated  by  the  framers 
of  the  constitution  that  any  legislator  would  remain  ignorant 
of  the  provisions  of  a  law  which  it  was  proposed  to  change,  or 


Jan.  1888.]  People  v.  Squire.  899 

would  require  the  provisions  of  such  a  law  to  be  transcribed 
into  the  proposed  legislation  to  enable  him  to  act  upon  it  judi- 
ciously and  intelligently.  Such  a  construction  would  lead  to 
innumerable  repetitions  of  laws  in  the  statute  hooks,  and  ren- 
der them  not  only  bulky  and  cumbersome,  but  confused  and 
unintelligible  almost  beyond  conception. 

3.  The  claim  that  this  law  is  void  because  it  imposes  a  tax 
on  the  companies  referred  to  cannot  be  maintained.  The  act 
of  1884  imposes  the  duty  upon  such  companies  to  remove,  and 
cause  to  be  laid  underground,  all  such  wires  and  cables  as  are 
required  in  their  business,  and  there  is  no  reason  why  such 
companies  should  not  be  subjected  to  the  payment  of  all  ex- 
penses incurred  in  the  construction  of  works  required  to  carry 
on  their  own  business. 

This  question  has  received  a  practical  construction  in  the 
legislation  of  the  state  by  its  laws  imposing  upon  banking  and 
insurance  corporations  the  expenses  incurred  by  the  govern- 
ment in  the  management  and  regulation  of  such  institutions 
and  their  business  operations.  It  has  never  been  supposed 
that  these  laws  imposed  a  tax,  within  the  meaning  of  the  con- 
stitution. A  further  answer  to  this  point  is  found  in  the  cir- 
cumstance that,  even  if  it  be  admitted  that  the  law  does 
impose  a  tax,  it  does  not  necessarily  invalidate  the  other  pro- 
visions of  the  statute.  The  comptroller  of  the  state  is  required 
to  pay  these  expenses  in  the  first  instance,  and  no  question 
arises  over  the  liability  of  the  companies  until  they  are  called 
upon  by  the  comptroller  to  refund  to  him  the  amount  of  such 
expenses.  This  provision  of  the  statute  may  be  eliminated 
from  it  without  impairing  in  the  least  the  general  scheme  of 
tie  act;  and  upon  well-settled  principles,  when  this  can  be 
done,  it  affects  so  much  of  the  act  only  as  may  be  declared 
unconstitutional. 

4.  The  relator  also  claims  that  the  act  is  obnoxious  to  the 
clause  of  the  constitution  which  forbids  the  enactment  of  any 
law  impairing  the  obligation  of  contracts.  It  may  bo  said  in 
reference  to  this  claim  that  the  contract  itself  provides  that 
the  work  of  removal  and  replacement,  and  of  making  excava- 
tions in  the  streets,  avenues,  etc.,  of  the  city  by  any  telegraph 
company,  for  the  purpose  of  laying  its  wires,  shall  bo  subject 
to  the  control  and  supervision  of  the  commissioners  of  public 
works;  and  such  commissioners  might  well  require,  in  tho 
exercise  of  their  discretion,  that  tho  locality,  time,  mode,  and 
manner  of  performing  such  work  should  be  approved  by  the 


900  People  v.  Squire.  [New  York, 

officers  having  the  general  supervision  of  that  subject  in  the 
city,  before  authorizing  a  single  company,  among  the  many 
claiming  such  privileges,  to  tear  up  its  streets  and  construct 
trenches  through  its  various  thoroughfares  and  avenues  at 
their  own  will  and  pleasure. 

But  we  are  of  the  opinion,  for  other  reasons,  that  this  legis- 
lation did  not  and  was  not  intended  to  materially  impair  or 
restrict  the  enjoyment  of  the  franchise  secured  by  the  relator. 
The  necessity  of  these  acts  sprung  out  of  a  great  evil,  which 
in  recent  times  has  grown  up  and  afflicted  large  cities  by  the 
multiplication  of  rival  and  competing  companies  organized 
for  the  purpose  of  distributing  light,  heat,  water,  the  trans- 
portation of  freight  and  passengers,  and  facilitating  communi- 
cation between  distant  points,  and  which  require  in  their  en- 
terprises the  occupation,  not  only  of  the  surface  and  air  above 
the  streets,  but  indefinite  space  underground.  This  evil  had 
become  so  great  that  every  large  city  was  covered  with  a  net- 
work of  cables  and  wires  attached  to  poles,  houses,  buildings, 
and  elevated  structures,  bringing  danger,  inconvenience,  and 
annoyance  to  the  public.  Extensive  spaces  underground 
were  also  required  to  lay  pipes  and  build  trenches  and  arches, 
to  transact  the  business  of  the  various  corporations  requiring 
them.  These  works  not  only  called  for  great  skill  to  harmo- 
nize the  various  and  conflicting  claims  of  competing  companies 
to  rights  above  as  well  as  beneath  the  ground,  but  a  compre- 
hensive plan  and  supervision  to  prevent  the  constant  dis- 
ruption of  the  streets  and  the  interruption  of  travel.  The 
necessity  of  a  remedy  for  these  public  annoyances  had  long 
been  felt,  and  it  finally  culminated  in  the  enactment  of  the 
several  statutes  referred  to. 

These  statutes  were  obviously  intended  to  restrain  and  con- 
trol, as  far  as  practicable,  the  evils  alluded  to,  by  requiring  all 
such  wires  to  be  placed  underground  in  such  cities,  and  be 
subject  to  the  control  and  supervision  of  local  officers  who 
could  reconcile  and  harmonize  the  claims  of  conflicting  com- 
panies, and  obviate,  in  some  degree,  the  evils  which  had  grown 
to  be  almost,  if  not  quite,  intolerable  to  the  public.  The 
scheme  of  these  statutes  was,  not  to  annul  or  destroy  the  con- 
tract rights  of  such  companies,  but  to  regulate  and  control 
their  exercise.  They  did  not  purport  to  deny  them  any  privi- 
leges theretofore  granted,  but  they  did  require  that  they  should 
be  exercised  with  due  regard  to  the  claims  of  others,  and  in 
Bxich  a  way  that  they  should  cease  to  constitute  a  public  nui- 


Jan.  1888.]  People  v.  Squire.  901 

Bance,  and  should  be  enjoyed  in  such  a  manner  as  to  incon- 
venience and  endanger  the  general  public  as  little  as  possible. 

That  regulations  of  the  character  provided  for  in  these  acts 
are  strictly  police  regulations,  and  such  as  no  chartered  rights 
can  nullify  or  override,  is  too  clear  to  admit  of  dispute.  The 
primary  and  fundamental  object  of  all  public  highways  is  to 
furnish  a  passage-way  for  travelers  in  vehicles  or  on  foot, 
through  the  country:  Bouvier's  Institutes,  sec.  442.  They 
were  originally  designed  for  the  use  of  travelers  alone.  But 
in  the  course  of  time  and  in  the  interest  of  the  general  pros- 
perity and  comfort  of  the  public,  they  have  been  put,  espe- 
cially in  large  cities,  to  numerous  other  uses;  but  such  uses 
have  always  been  held  to  be  subordinate  to  the  original  design 
and  use.  Thus  they  have  been  appropriated,  in  recent  times, 
for  the  reception  of  sewers,  water-pipes,  gas-pipes,  pipes  for 
heating  and  manufacturing  purposes,  underground  railroads, 
trenches  for  wires  for  telegraph,  telepbone,  and  other  purposes, 
which  all  require  in  their  construction  the  disruption  of  the 
pavements,  and  the  temporary  interruption,  at  least,  of  the 
rights  of  travelers  in  the  public  highways.  The  due  and  or- 
derly arrangement  of  the  various  and  conflicting  claims  to 
privileges  in  the  streets  of  large  cities  would  seem  impera- 
tively to  require  the  creation  of  a  neutral  board,  with  control- 
ling authority,  to  form  a  comprehensive  plan  by  which  these 
various  enterprises  may  be  harmonized  and  carried  on  with- 
out detriment  to  each  other  and  with  due  regard  to  the  rights 
of  the  public.  Such  power  is  pre-eminently  a  police  power, 
and  it  is  within  the  legitimate  authority  of  a  legislature  to 
delegate  its  exercise  to  municipal  corporations. 

An  elementary  writer  has  said  that  "  the  police  of  a  state, 
in  a  comprehensive  sense,  embraces  its  system  of  internal 
regulation,  by  which  it  is  sought,  not  only  to  preserve  the  pub- 
lic order  and  to  prevent  offenses  against  the  state,  but  also  to 
establish,  for  the  intercourse  of  citizen  with  citizen,  those  rules 
of  good  manners  and  good  neighborhood  which  are  calculated 
to  prevent  a  conflict  of  rights,  and  to  insure  to  each  the  unin- 
terrupted enjoyment  of  his  own,  so  far  as  is  reasonably  con- 
sistent with  a  like  enjoyment  of  rights  by  others*':  Cooley  on 
Constitutional  Limitations,  572. 

Justice  Shaw  said,  in  Commonwealth  v.  Alger,  7  Cush.  84, 
that  it  was  "a  well-settled  principle,  growing  out  of  the  nature 
of  well-ordered  civil  society,  that  every  holder  of  projMjrty, 
however  absolute  and  unqualified  may  be  bis  title,  holds  it 


902  People  v.  Squire.  [New  York, 

under  the  implied  liability  that  his  use  of  it  shall  not  be  in- 
jurious to  the  rights  of  the  community.  All  property  in  this 
commonwealth  ....  is  held  subject  to  those  general  regu- 
lations which  are  necessary  to  the  common  good  and  general 
welfare." 

Chief  Justice  Redfield,  in  Thorpe  v.  Rutland  and  Burlington 
R.  R.  Co.,  27  Vt.  149,  62  Am.  Dec.  G25,  says:  "This  police 
power  of  the  state  extends  to  the  protection  of  the  lives,  limbs, 
health,  comfort,  and  quiet  of  all  persons,  and  the  protection  of 
all  property  within  the  state." 

The  right  to  exercise  this  power  cannot  be  alienated,  surren- 
dered, or  abridged  by  the  legislature,  by  any  grant,  contract, 
or  delegation  whatsoever,  because  it  constitutes  the  exercise 
of  a  governmental  function,  without  which  it  would  become 
powerless  to  protect  those  rights  which  it  was  especially  de- 
signed to  accomplish.  Thus  it  was  held  in  Presbyterian 
Church  V.  City  of  New  York,  5  Cow.  540,  where  the  corpora- 
tion had  granted,  with  a  covenant  for  quiet  enjoyment,  a  piece 
of  land  to  the  plaintifif  to  be  used  for  church  purposes  and  as 
a  cemetery,  that  the  power  of  the  municipal  government  to 
pass  an  ordinance  forbidding  the  use  of  such  premises  as  a 
cemetery  for  the  interment  of  the  dead  constituted  no  breach 
of  the  covenant.  It  was  said  that  "the  defendants  are  a  cor- 
poration, and  in  that  capacity  are  authorized  by  their  charter 
and  by-laws  to  purchase  and  hold,  sell  and  convey,  real  estate 

in  the  same  manner  as  individuals They  are  also 

clothed,  as  well  by  their  charter  as  by  subsequent  statutes  of 
the  state,  with  legislative  powers,  and  in  the  capacity  of  a 
local  legislature  are  particularly  charged  with  the  care  of  the 
public  morals  and  the  public  health  within  their  jurisdiction. 
....  They  had  no  power  as  a  party  to  make  a  contract 
which  should  control  or  embarrass  their  legislative  powers  and 
duties."    To  the  same  eflfect  is  People  v.  Morris,  13  Wend.  325. 

In  Wynehamer  v.  People,  13  N.  Y.  421,  Judge  Comstock 
says,  in  speaking  of  rights  of  property:  "The  substantial  right 

cannot  be  destroyed;  its  enjoyment  is  not  an  offense 

At  the  same  time,  the  mode  of  enjoyment,  in  its  broadest 
sense,  is  subject  to  legislation,  though  it  be  affected  very 
injuriously,  provided  a  substantial  right  is  left.  The  claim 
made  by  the  relator  in  this  case  would  authorize  it  to  tear  up 
the  streets  of  the  city  at  such  times,  in  such  places,  and  under 
such  circumstances  as  it  might  itself  determine,  regardless  of 
the  public  convenience  and  welfare,  and  the  rights  of  other 


Jan.  1888.]  People  v.  Squibe.  908 

claimants  to  the  occupation  thereof,  and  place  it  beyond  the 
reach  of  all  power  by  the  legislature  to  regulate  the  mode  and 
manner  of  the  enjoyment  of  its  rights. 

We  do  not  think  such  a  claim  can  be  sustained.  It  is 
neither  within  the  terms  of  its  contract,  and  if  it  were,  it  is 
still  subject,  in  the  respects  mentioned,  to  the  police  power  of 
the  state. 

The  order  of  the  general  term  should  be  affirmed,  with 
costs. 

Order  affirmed. 


LoCAl.  AND  Pbivate  Laws.  —  A  law  is  not  necessarily  a  local  law  beoaose 
"the  practical  effect  and  operation  of  the  law  is  and  most  be  in  every  in- 
stance local,  special,  and  private."  It  is  sufficient  that  the  law  offers  like 
privileges  to  all  who  may  comply  with  its  terms  or  come  within  its  pro- 
visions. In  sustaining  the  constitutionality  of  a  statute  regarding  elevated 
railways,  the  court  of  appeals  of  New  York  said:  "The  fact  that  some  are 
not  able  to  avail  themselves  of  the  opportunities  offered  does  not  impugn  the 
general  character  of  an  act.  When  a  railroad,  under  the  general  law,  is  con- 
structed from  one  point  to  another,  the  topography  of  the  country  through 
which  it  runs  may  be  such  as  to  forbid  the  construction  of  another  railroad. 
But  one  elevated  railway  can  be  constructed  through  the  same  street;  and 
hence,  upon  any  route  in  a  city,  but  one  company  for  the  construction  of  a 
railway  is  practicable;  and  while  the  legislature  could  not  by  private  act  incor- 
porate such  company,  the  problem  for  it  to  solve  by  the  general  act  was, 
how  such  railways  could  be  constructed  under  a  general  act  authorized  by  the 
constitution.  It  would  not  be  feasible  to  permit  the  formation  of  several 
corporations  to  operate  railways  in  the  same  streets,  nor  would  it  be  wise  to 
lease  a  railway  to  be  constructed  by  the  corporation  which  by  accident  was 
first  in  time.  Nor  would  the  same  plan  for  the  construction  and  operation 
of  railways  in  all  places  be  practicable.  Hence  it  became  the  duty  of  the 
legislature,  by  a  law  having  a  general  operation,  to  provide  machinery  which 
should  determine  the  necessity  of  a  railway,  and  the  streets  and  places 
where  it  should  be  constructed,  the  company  or  organization  of  Individuals 
which  should  construct  it,  and  the  plan  upon  which  it  should  be  con- 
structed. While  upon  any  route  the  franchises  are  given  to  one  corporation, 
the  formation  of  that  corporation  is  open  to  all  persons  on  the  same  terms, 
and  no  person  is  excluded  from  becoming  a  stockholder  therein.  The 
methods  adopted  in  this  act  seem  well  devised  to  attain  the  end  sought,  and 
it  is  quito  certain  that,  without  some  such  methods,  no  elevated  or  under- 
ground railways  can  be  constructed.  And  the  act  is  not  limited  in  time. 
While  it  is  true  that  one  set  of  commissioners  can  act  upon  but  one  ap- 
plication, a  new  set  of  commissioners  can  bo  appointed  whenever  any  pereone 
desire  to  form  a  corporation,  and  present  the  proper  application.  I  can 
therefore  entertain  no  doubt  that  this  is  a  general  act  within  the  meaning 
of  the  constitution  ":  In  tfie  Matter  ^f  N.  Y.  Elevattd  R.  li.  Co.,  70  N.  Y. 
840.  In  In  tfie  MaUer  </  Church,  92  N.  Y.  4,  it  was  truly  said,  with  respect 
to  local  and  general  laws:  "  It  is  not  easy  to  define  with  accuracy  the  differ- 
ence between  the  two  forms  of  legislation,  and  the  difficulty  is  better  solved 
by  adding  examples  to  definitions.     A  law  relating  to  particular  persons  or 


904  People  v.  Squire.  [New  York. 

things  03  a  claa3  ia  said  to  be  general;  while  one  relating  to  particular  per* 
801X3  or  things  of  a  doss  is  local  and  private."  Referring  to  a  statute  appli* 
cable  to  counties  having  'within  their  boundaries  a  city  of  more  than  one 
hundred  thousand  inhabitants,  the  court  said:  "The  act  of  1881  relates  to  a 
class,  and  applies  to  it  as  such,  and  not  to  the  selected  elements  of  which  it 
is  composed.  The  class  consists  of  every  county  in  the  state  having  within 
its  boundaries  a  city  of  one  hundred  thousand  inhabitants  and  territory  be- 
yond the  city  limits  mapped  into  streets  and  avenues.  How  many  such  coun- 
ties there  are  now  or  may  be  in  the  future  we  do  not  know,  and  it  is  not 
material  that  we  should.  Whether  many  or  few,  the  law  operates  upon 
them  all  alike,  and  reaches  them,  not  by  a  separate  selection  of  one  or  more, 
but  through  the  general  class  of  which  they  are  general  elements.  The  force 
of  the  general  law  of  1881  is  not  localised  in  Kings  County  and  confined  to 
its  territory.  By  its  terms  it  applies  equally  to  every  other  county  which 
may  prove  to  be  within  the  constituted  class.  It  is  said  there  is  but  one 
such  county;  and  so  also  it  is  said  there  was  but  one  elevated  railroad. 
Neither  fact  at  all  narrowed  the  terms  of  the  law.  Those  terms  in  each  caso 
were  broad  enough  to  cover  every  county  in  the  state,  if  it  had  the  required 
city  and  the  mapped  territory  on  the  one  hand,  or  its  own  elevated  road  on 
the  other. "  These  remarks  were  made  with  regard  to  a  statute  which,  though 
in  terms  applicable  to  any  county  within  the  state,  was  in  fact  obviously  in- 
tended to  operate  in  a  particular  county  only,  and  was  unquestionably  enacted 
in  such  terms  as  might  obey  the  letter,  while  they  violated  and  destroyed  the 
spirit,  of  the  constitutional  inhibition  against  local  legislation. 

Irbefealable  Laws.  —  Whenever  a  statute  or  a  statutory  grant  partakes 
of  the  nature  of  a  contract,  any  substantial  modification  thereof  by  the  legis- 
lature is  impossible  as  against  persons  whose  rights  would  be  injuriously 
aflfected  because  of  the  provisions  of  the  constitution  of  the  United  States 
forbidding  the  enactment  of  any  statute  impairing  the  obligation  of  contracts. 
But  unless  controlled  by  this  provision  of  the  national  constitution,  or  of  the 
constitution  of  the  state,  a  statute  can  never  have  the  character  of  final  or 
irrevocable  legislative  action.  "  Similar  reasons  to  those  which  forbid  the 
legislative  department  of  the  state  from  delegating  its  authority  will  also 
forbid  its  passing  any  irrepealable  law.  The  constitution,  in  conferring  the 
legislative  authority,  has  prescribed  to  its  exercise  any  limitations  which  the 
people  saw  fit  to  impose;  and  no  other  power  than  the  people  can  superadd 
other  limitations.  To  say  that  the  legislature  may  pass  irrepealable  laws  is 
to  say  that  it  may  alter  the  very  constitution  from  which  it  derives  its  au- 
thority; since,  in  so  far  as  one  legislature  could  bind  a  subsequent  one  by  its 
enactments,  it  could  in  the  same  degree  reduce  the  legislative  power  of  its 
successors;  and  the  process  might  be  repeated,  until  one  by  one  the  subjects 
of  legislation  would  be  excluded  altogether  from  their  control,  and  the  con- 
Btitutional  provision  that  the  legislative  power  shall  be  vested  in  two  houses 
would  be  to  a  greater  or  less  degree  rendered  ineffectual ":  Cooley's  Const. 
Lim.  152. 

Police  Poweb  ov  State  is  considered  with  respect  to  the  constitution- 
ality of  laws  inhibiting  or  regulating  the  manufacture  and  sale  of  certain 
articles  which  are  supposed  to  injure  or  deceive  the  public,  in  the  note  to 
Butler  V.  Chambers,  ante,  p.  644-650,  in  ComnwnwtaUh  v.  KimbaU,  35  Am.  Dec 
326,  and  note  334,  335,  and  Thorpe  v.  RuOavd  R.  R.  Co.,  62  Am.  Dec.  625, 
and  note. 


INDEX  TO  THE  NOTES. 


Action,  surriTorship  on  death  of  person  injured,  461. 
AoREKlCEitT  to  use  real  property  for  special  purposes  only,  822. 
Attachment,  judgment  rendered  on,  is  valid  against  non-residents,  41. 
Attokney  at  Law,  dealings  by,  affecting  client's  interest,  2o9. 
purchase  by,  when  must  hold  in  trust  for  his  client,  259. 

Bbokebs,  gambling  contracts,  right  to  commissions  on,  766. 
right  to  commissions  on  sales  for  future  delivery,  754. 

Chabttablb  Uses,  bequests  to,  415. 
CoiCMON  Carriers,  contracts  limiting  liabilities  of,  728. 
Ck)iCPOSiTiON  Deeds,  agreements  which  will  avoid,  891. 
Conditional  Sales,  form  of,  is  not  conclusive,  63,  64. 

in  form,  when  will  be  declared  mortgages,  63,  64. 

testa  of,  64. 

validity  of  conditions  of,  63. 

when  not  sustained  as  against  bona  Jide  purchasers,  63. 
Constitution,  amendments  to,  entry  of  on  journals  of  legiaUtore,  21. 

amendments,  essential  elements  of  adoption  of,  21. 
CoNanrnTiONAL  Law,  effect  of  statute  prohibited  by  the  constitatioo,  7S. 

law,  meaning  of  this  word  as  used  in  constitution,  74. 

•tatates  authorizing  payment  of  claims  created  ander  an  nnconititii* 
tional  statute,  75. 

statutes  requiring  railroad  companies  to  construct  farm-crossings,  149. 
Contracts  between  spiritualistic  mediums  and  believers  in  their  powen, 
88,  89, 

for  sale  of  chattels  which  the  vendor  does  not  own,  when  void  M  wager- 
ing contracts,  752-700. 

for  the  sale  of  whisky,  when  invalid,  302,  303. 
CoBPORATiONs,  acceptance  of   negotiable  instrument  by  officers  of,  when 
binding,  136. 

foreign,  extent  to  which  may  act  and  contract,  161. 

foreign,  right  of  to  exercise  their  powers  in  otlier  states,  160,  161. 

holder  of  stock  of  as  collateral,  not  liable  as  stockholder  of,  783. 

negotiable  p.iper,  i8sne<I  by,  is  presumed  to  have  been  authorised,  136w 

pledgee  of  stock  belonging  to  the  corjraration,  7S4. 

preferred  stockholders,  to  what  profits  entitled,  342. 

DAifAOES,  for  loss  of  profits,  229. 

special  for  delay,  228. 
DiSD,  acceptance  of  by  minor  is  presumed,  243. 

composition  agreements  which  will  avoid,  891. 

903 


906  Index  to  the  Notes. 

Died,  delivery  of  is  essential,  242. 

delivery  of  without  leaving  hands  of  the  grantor,  243. 

qnitclaim,  by  mortgagee,  passes  no  title,  247. 

quitclaim  of  land  held  under  land-office  certificate,  247> 

quitclaim,  what  passes  by,  247. 

quitclaim,  when  may  convey  greater  title  than  grantor  has,  247. 

recording  does  not  dispense  with  delivery,  243. 

to  operate  only  after  death  of  grantor,  243. 
Devhtition  of  irreparable  injury,  374. 

Election  between  action  in  tort  and  in  contract,  627. 

between  consistent  remedies  is  not  irrevocable,  626. 

between  remedies,  when  irrevocable,  626. 

evidence  of,  what  is,  628. 
Estates  of  Decedents,  debts  against,  out  of  what  property  payable,  171. 

legacies  against,  out  of  what  property  payable,  172. 

vest  in  their  heirs,  171. 
Entbt  of  constitutional  amendments  in  journals  of  legislature,  21,  22L 
Estoppel  by  encouraging  another  to  improve  land,  826. 

by  permitting  construction  of  quasi  public  improvement,  826. 
Evidence  to  explain  writing,  114. 

parol,  to  vary  or  explain  written  acceptance,  137. 
Execution,  exemption  applies  to  interest  of  co-tenant,  693. 

exemption,  laws  granting  are  liberally  construed,  693. 

exemption  of  partnership  property,  593. 
Executor,  foreign,  assignee  of,  action  by,  160. 

foreign,  sale  of  mortgage  by,  160. 

foreign,  suits  by  or  against,  160. 
Extradition,  duty  to  surrender  fugitives,  179. 

fugitives  from  justice,  arrest  and  detention  of,  179. 

kalteas  corpus,  what  may  be  inquired  into  upon,  179. 

F&AUD  in  sale,  right  of  rescission  not  lost  by  suing  for  purchaae-price,  626. 
Fbaudulent  Conveyance,  attack  on  need  not  be  made  in  equity,  216. 
attack  on,  when  judgment  must  be  shown,  626. 

Qahblino,  loan  for  purpose  of,  when  not  collectible,  302. 

Homestead  in  partnership  lands,  694. 

lOB  on  ponds,  right  to  cut,  352. 

on  ponds,  riparian  owner's  right  to,  352. 

on  rivers,  right  to  travel  on,  352. 
Iotant  Employees.    See  Master  and  Servant. 
Injunction  against  business  so  conducted  as  to  constitute  a  nuisance,  64. 

irreparable  injuries,  cutting  ornamental  or  fruit  trees,  377. 

irreparable  injuries  defined,  374. 

irreparable  injuries,  destruction  of  estate  is,  376. 

irreparable  injuries,  digging  up  land,  376. 

irreparable  injuries,  disturbance  of  right  to  stream  of  water,  376. 

irreparable  injuries,  how  alleged,  378. 

irreparable  injuries,  instances  of  injuries  which  are  not,  377. 

irreparable  injuries,  interference  with  burial  grounds,  376. 

irreparable  injuries,  removing  minerals  from  mines,  376. 

irreparable  injuries,  tests  of,  375. 


Index  to  the  Notes.  907 

IVJVNOTION,  irreparable  injuries,  those  which  cannot  be  measured  b^  any 

pecuniary  standard  are,  375. 
Inkkbefers,  liabilities  of,  221. 

Inbakity,  belief  in  spiritualism  as  evidence  of,  88,  89. 
Insusance,  waiver  of  proofs  of  loss,  406. 
Interpleader  changes  action  at  law  into  suit  in  equity,  800. 

code  provisions  do  not  enlarge  grounds  of,  800. 

code  provisions  for  substitution  of  one  person  in  place  of  another  a«  de- 
fendant, 800. 

code  provisions,  practice  under,  801. 

code  provisions  regarding,  construed,  800. 

costs  in  proceedings  under,  802. 

discharge  of  defendant  from  liability  under,  801. 

practice  in,  under  the  code,  801,  802. 

JncoMENTS,  amendment  of  nunc  pro  tunc,  notice  of,  when  essential,  194. 

amendment  of  nunc  pro  tunc,  on  what  evidence  may  be  based,  194. 

quieting  title  against  non-residents,  254. 

under  attachment  proceedings,  validity  of  against  non-residenta,  41. 
JVBT  Trial,  argument  of  questions  of  law  to  jury,  754. 

books  of  law,  reading  during  argument,  754. 

jurors,  challenge  of,  after  they  are  sworn,  523,  524. 

jurors,  discharge  of,  after  being  sworn,  522,  525. 

jurors,  discharge  of,  during  trial,  for  illness,  525. 

jurors,  discretion  of  court  to  excuse,  519. 

jurors,  excusing  after  being  sworn,  for  alienage,  523. 

jurors,  excusing  for  refusal  to  be  sworn,  523. 

jurors,  excuse  of  by  court,  because  of  objections  to  capital  punishment. 
620. 

jurors,  excuse  of,  by  court,  for  forming  opinions,  521. 

Jurors,  excuse  of,  by  court,  for  intoxication,  521. 

jurors,  excuse  of,  by  court,  for  lack  of  intelligence,  621. 

jurors,  excuse  of,  by  court,  for  partiality,  321. 

jurors,  excuse  of,  by  court,  for  reasons  not  sufficient  to  rostain  a  chal* 
lenge,  522. 

jurors,  excuse  of,  by  court,  sundry  causes  for,  522. 

jurors  not  objected  to,  whether  may  be  excused,  620. 

jurors,  setting  aside  for  insufficient  cause,  when  no  ground  for  revenal, 
620. 

Laws,  general  and  local,  what  are,  903. 

irrepealable,  904. 

providing  for  payment  of  claims  created  under  an  tmooostitatiMul  stat- 
ute, 76. 
y.«A««,  awignee  holding  as  tenant  in  common,  liability  of,  83. 

aangnee  of,  is  answerable  on  covenants  of,  83. 

assignee  of  specific  part  of  demised  premises,  83. 

assignment  of,  does  not  release  assignor,  83. 

distinction  between  assignee  and  sublessee  of,  88.. 

outer  walls  of  building  are  included  within,  429. 
LaoiBLATintK,  power  of  each  house  to  collect  information,  88S. 

witnesses,  power  to  punish  for  contempt,  836. 

witaflMas,  power  to  compel  attendance  of,  836. 


908  Index  to  the  Notes. 

Mandahxts  to  compel  allowance  of  inspection  cf  records,  116. 
to  prevent  discrimination  by  railroads,  116. 
to  test  title  of  officers  of  corporation,  116. 
Marriage  Settlement,  in  whose  favor  will  be  enforced,  798. 
Master  and  Servant,  danger  from  extraneous  canses,  duty  of  master  to 

warn  servant  of,  550. 
danger,  increase  in,  duty  imposed  on  master  by  law  to  warn  servant 

of,  29. 
delegation  by  master  of  duty  of,  650. 

difference  between  duty  of  master  to  minor  and  to  adult  employees,  28. 
fellow-servants,  who  are,  31,  32. 
fellow-servants,  who  are  not,  32. 

machinery,  defects  in,  for  which  master  is  not  answerable,  548. 
minor  employees,  duty  of  master  to  instruct  respecting  dangers  of  em- 
ployment, 28,  549. 
minor  employees,  failure  of  fellow-servants  to  instruct,  whether  master 

is  answerable  for,  29. 
minor  employees,  instructed  as  to  dangers  of  employment,  stand  on  same 

footing  as  other  servants,  28. 
minor  employees,  injuries  to  from  obeying  one  not  authorized  to  exact 

obedience,  30. 
minor  employees,  injuries  to,  from  neglect  of  fellow-servants,  29. 
patent  dangers,  master  need  not  point  out,  549. 
risks  of  employment,  servant  assumes,  550. 
servant,  duty  of,  to  ascertain  authority  of  other  employees,  30u 
servant,  what  risks  assumes,  548. 
warning  of  danger,  master's  duty  to  give,  549. 
warning  of  danger,  master's  duty  to  give  cannot  bo  delegated  to  other 

employees,  549. 
Mortoaqe,  contract  in  form  of  conditional  sale,  when  held  to  be,  63,  64. 
conveyance  by  mortgagor,  when  conveys  legal  title,  189. 
foreclosure  of,  proper  parties  to  suit  for,  189. 
foreclosure  of,  tax  purchase,  litigating  in  suit  for,  189. 
foreclosure  of,  without  making  grantee  of  mortgagor  a  party  defendant, 

190,  191. 
grantee  of  mortgagor,  when  must  be  a  party  to  foreclosure,  190. 
oral,  equity  will  enforce,  237. 
oral,  validity  of,  237. 
oral,  what  is  an,  237. 
vendor's  lien,  when  has  the  effect  of,  237. 

Neoliqence,  inattention  in  passing  along  public  street,  69. 

See  Master  akd  Servant. 
Negotiable  Instruments,  acceptance,  consideration  of  may  not  be  denied, 
136. 

acceptance  for  accommodation,  136,  138. 

acceptance,  how  may  be  discharged,  136. 

acceptance,  oral  is  valid,  137. 

acceptance,  parol  evidence  not  admissible  to  vary,  137. 

acceptance,  parol  evidence  may  explain  ambiguity  in,  137. 

acceptance,  parol  evidence  that  acceptor  acted  as  agent^  not  allowed,  1S7« 

acceptor's  contract,  nature  of,  134. 

acceptor,  defenses  available  to,  134-138. 


Index  to  the  Notes.  909 

NiooTiABLE  Instrttments,  accepter  of  forged  bills,  136. 

acceptor  is  surety  of  drawer,  137. 

acceptor,  release  of  by  forbearance,  137. 

burden  of  proof  respecting  transfer  of,  184. 

consideration,  antecedent  debt  as  a,  136. 

corporation,  acceptance  by  oflBcer  of,  136. 

corporation,  honafde  holder  of  paper  of,  136. 

oral  promise  to  accept,  1 37. 

payment,  whether  may  be  compelled  without  surrender  of,  184. 

surrender  of,  whether  may  be  exacted  as  conditioa  of  payment,  184. 

transfer  of  without  indorsement,  806. 
Notice,  from  recitals  in  deeds,  829. 
NoN-KESiDENTS,  judgments  against,  quieting  title,  264,  265. 

judgments  against,  where  their  property  has  been  attached,  41. 
Nuisances  in  conducting  lawful  business,  54. 

Olsomarqarine,  imitation  of  butter  may  be  forbidden,  647. 

nmrking  and  stamping  of  may  be  required,  649. 

statutes  prohibiting  manufacture  of,  whether  constitutional,  645,  646. 
Options,  statutes  prohibiting  sales  of,  754. 
Opittm,  statutes  prohibiting  selling  or  giving  of,  649. 

Pabtnekship,  exemption  of  property  of,  from  execution,  59^-595. 

homestead  in  lands  of,  504. 
Pensions,  fees  which  may  be  ciiarged  for  obtaining,  678. 
Police  Power,  all  rights  are  subject  to,  645. 

constitutional  rights  must  not  be  impaired  under  pretense  of  ezeroisinf» 
645. 
I         cotton-seed,  statute  prohibiting  sale  of,  649. 
'        described,  647. 

food,  statutes  regulating  manufacture  and  sale  of,  649. 

industrial  pursuits  which  may  be  prohibited  in  exercise  of,  645. 

legislature  cannot  divest  itself  of,  645. 

manufacture  or  traffic  which  may  be  prohibited  under,  645. 

milk,  statute  regulating  sale  of  adulterated,  649. 

oleomargarine,  statute  prohibiting  manufacture  and  sale  of,  whether  coa 

stitutional,  645. 
opium,  statute  prohibiting  sale  of,  649. 
patented  articles,  sale  of  may  be  forbidden,  650. 
trade  and  business  may  be  regulated  under,  644. 
"Puts  and  Calls,"  contracts  for  sale  of,  when  valid,  766,  763, 

Quieting  Title  against  non-residents,  264,  265. 

Railboad  Companies,  fire,  liability  Tor  while  goods  are  under  oontnet  erf- 
carriage,  445. 
paaaengers,  contributory  negligence  of,  200. 

pMsengers,  degree  of  care  and  diligence  exacted  with  reipect  to,  200. 
profits  of,  rule  for  ascertaining,  342. 

■ervants  of,  care  which  mast  lie  used  to  avoid  exposure  to  dftDgtr,  S74». 
■ervaots,  contributory  negligence  of,  279. 
Mrrants,  liability  for  injuries  to,  from  low  bridges,  279. 
■iok  passengers,  duties  to,  200. 
■argioal  attendance  on  employees,  liability  for,  IM. 
rargical  attendance  on  injured  paMengera,  200. 


910  Index  to  the  Notes. 

Railroad  Cohfaxics,  surgical  attendance,  what  ofiScers  may  contract  for, 
199,  200. 

through-tickets,  liability  under,  200. 
Real  Estate,  agreement  to  use  for  specific  purposes  only,  822. 
Remedies,  concurrent  and  consistent,  may  be  pursued  at  the  same  time,  626. 

election  between,  evidence  of,  628. 

election  between,  when  irrevocable,  626. 

suit  to  reform  contract,  waiver  of,  by  action  on  the  contract,  628. 

waiver  of  one  by  pursuing  another,  626. 
RiVEBS,  ice  on,  riparian  owner  has  no  property  in,  352. 

frozen  over,  right  to  travel  on,  352. 

Sales,  broker's  right  to  commissions  and  advances  on,  764. 
burden  of  showing  illegality  of,  764. 
conditional,  63,  64. 

evidence  to  show  that  they  were  mere  gambling  transactions,  764. 
for  future  delivery,  intent  of  parties  controls,  760. 
for  future  delivery,  statutes  against,  754. 
form  of  contract  is  not  conclusive  of  intent  of  the  parties,  762. 
"futures,"  statutes  prohibiting  dealings  in,  754. 
gaming  or  wagering  contracts,  756,  759. 
gaming  or  wagering  contracts,  English  statutes  against,  756. 
intent  which  will  make  illegal  must  be  concurred  in  by  both  parties,  761. 
loans  incurred  to  pay  losses  of  stock  gambling,  760. 
margins  on  illegal,  cannot  be  recovered,  760. 
negotiable  paper  given  for  illegal,  760. 
of  articles  for  unlawful  uses,  302. 

of  property  which  the  parties  do  not  expect  to  be  delivered,  758. 
of  stocks  or  bonds  of  which  the  vendor  is  not  the  owner,  statutes  pro* 

hibiting,  753. 
on  margin,  of  commodities,  754. 
on  margin,  of  stocks  in  corporations,  prohibition  of  in  constitntion  of 

California,  753. 
option  as  to  time  of  delivery  does  not  make  illegal,  762. 
"puts  and  calls,"  statutes  against  sales  of,  755. 
short  are  not  necessarily  wagers,  762. 
speculative,  not  prohibited,  762. 

statutes  prohibiting,  when  vendor  does  not  own  stock  sold,  763. 
stock-jobbing  acts  in  England,  against  whom  apply,  753. 
"straddles,"  sales  of,  when  valid,  763. 
vendor  need  not  own  property  at  time  of,  757. 
warranty  implied  that  articles  are  fit  for  food,  475. 
Seamen,  action  by,  for  neglect  of  ship-owner  to  furnish  medical  care,  813. 
competency  of,  not  warranted  by  ship-owner,  812. 
expenses  during  illness  must  be  borne  by  ship,  813. 
master's  duty  to  in  case  of  illness,  814. 
may  object  to  unseaworthiness  of  vessel,  812. 
provisions,  ship-owners  must  supply  with,  813. 
provisions,  action  against  ship-owners  for  not  supplying  proper,  813. 
sick,  abandoning  the  ship  release  their  right  to  medical  care,  814. 
sick,  are  entitled  to  be  cured  at  the  expense  of  the  ship,  813. 
sick,  negligence  of,  does  not  affect  their  right  to  medical  care,  814. 
nek,  willful  misconduct  of,  whereby  illness  was  produced,  814. 


Index  to  the  Notes.  911 

Shzp-ownebs,  chest  of  medicines  mast  be  kept  on  board  by,  813b 
latent  defects  in  vessel,  when  not  liable  for,  813. 
master,  are  answerable  for  torts  of,  813. 
provisions,  duty  to  provide  for  seamen,  813. 
seamen,  owners  do  not  insure  against  latent  defects  in  ship,  812. 
seamen,  owners  do  not  warrant  competency  of,  812. 
seaworthiness,  seamen  during  voyage  may  object  to  want  of,  812. 
seaworthiness,  seamen  may  refuse  to  go  to  sea  for  want  of,  812. 
seaworthiness,  warranty  of,  in  favor  of  seamen,  812. 
shares,  sailing  of  vessel  on,  by  master,  whether  relieves  owners  from 
liability,  814. 
Spibitualistio  Mediums,  contracts  with  and  gifts  to,  88. 

relation  between  and  believers  in  their  assumed  powers,  88. 
nudue  influence,  when  attributed  to,  88,  89. 
Statutb  or  Frauds,  agreement  to  purchase  a  mortgage,  623. 
SiATUTS  or  Limitations  commencing  to  run  is  not  suspended  by  sabaeqaent 
disability,  789. 
fraud,  when  runs  in  cases  of,  788. 
Stofpaok  is  Transitu,  carrier,  notice  to,  313. 

demand  for  goods  by  whom  may  be  made,  312. 

demand  for  goods  of  whom  may  be  made,  312,  313, 

latest  time  at  which  right  of,  may  be  exercised,  314. 

mode  of  exercising  right  of,  312,  313. 

right  of,  continues  until  goods  pass  to  possession  of  vendee,  312. 

ship-owners,  notice  to,  when  sufficient,  313. 
Stock-jobbino  Acts,  English  statutes  applied  only  to  publio  stocki  and 
securities,  753. 

object  of,  752. 

sales  against  which  directed,  752,  753. 
Streets,  bridge  in,  when  an  unlawful  obstruction,  842. 

buildings  in,  when  are  nuisances,  840,  842. 

bay-windows  overhanging,  842. 

crowds,  business  must  not  be  conducted  so  as  to  collect,  in,  84& 

ditches  across,  one  who  constructs,  must  cover,  842. 

excavations  in,  must  bo  guarded,  844. 

goods  may  not  be  left  in,  for  purposes  of  sale,  841,  842. 

goods,  temporary  obstruction  by,  when  permitted,  840. 

hay  scales  in,  842. 

holes  in  sidewalk,  liability  of  land-owner  for,  59. 

inattention  of  injured  party,  when  not  contributory  negligeaoe,  69. 

obstructions  in,  lot-owner's  liability  for,  59. 

obstructions  in,  permanent,  are  public  nuisanoei,  842. 

obstruction  of,  must  always  be  reasonable,  841. 

temporary,  may  be  justified,  840. 

when  a  public  nuisance,  840,  841,  842. 

pasture  grounds,  utto  of,  for,  843. 

play  grounds,  uso  of,  for,  59. 

prescriptive  title  cannot  bo  acquired  to,  844. 

railroad  company  has  no  right  to  let  can  stand  in,  84S. 

stage-coach  may  not  stand  in,  an  unreasonable  time,  84L 

store-keeper  has  no  right  to  use,  to  display  goods,  842. 

structures  in,  when  are  publio  noisanoes,  842. 

trees  in,  843. 


912  Index  to  the  Notes. 

SuMMOns,  defects  in  service  of,  when  not  fatal  to  judgment,  BL 

Tax  Title,  litigating  in  suit  to  foreclose  mortgage,  638. 
Telegraph  Company,  cipher  dispatch,  liability  for  mistake  in  tran8xnlttln|^ 
228. 

damages,  measure  of,  for  mistake  in  transmitting,  229. 
Tenants  in  Common,  liability  of,  on  covenants  of  lease  acquired  by  aasign. 

ment,  83. 
Trespass  committed  by  mistake,  496. 

in  cutting  trees,  treble  damages  when  recoverable  for,  496. 

penalties  for,  are  recoverable  only  in  cases  of  willful  wrongs,  496. 

penalties,  who  may  sustain  action  for,  497. 
Trustee,  conveyance  by,  in  contravention  of  the  trust  is  void,  829. 

ex  mcUeficio,  who  is  a,  798. 

Vendor's  Lien,  when  exists,  256. 
Vessel  sailed  on  shares  by  the  master,  814. 

seamen's  right  to  medical  care  when  ill  in  service  of,  812-814. 

Watvkr  of  one  remedy  by  pursuing  another,  626. 

Will  made  by  testator  acting  under  direction  of  departed  Bpirita,  88,  89L 

intent  of  testator  must  prevail,  96. 

interpretation  of  "or "  and  " and,"  97. 
Witness  disobeying  order  of  court  for  his  exclusion  from  the  court-room,  389. 

officers  of  corporation  not  allowed  fees  as,  252. 

right  of,  to  recover  compensation  of  party  requiring  their  attendance^ 
26S. 


INDEX. 


ABANDONMENT. 
See  Homesteads. 

ACCORD  AND  SATISFACTION. 

1.  ACXJKFTANCB  OF  Lesser  Sum  DOES  NOT,  Ordinarily,  bar  a  demand  for  a 

greater.     WJdte  v.  Kuntz,  886. 

2.  Composition  ot  Debtor  with  his  Creditors,  in  Which  Thkt  Aorkb  to 

accept  less  than  their  entire  demands,  is  binding  on  them.  A  compoei* 
tion  deed  is  in  its  spirit  an  agreement  between  the  creditors  themselves, 
as  well  as  between  them  and  their  debtor.  Id. 
8.  Agreement  in  Favob  or  Creditor  Who  has  United  in  Compositioh 
Deed,  whereby  he  is  to  obtain  any  advantage  over  the  other  creditors, 
to  which  they  did  not  assent,  is  void,  and  therefore  not  enforceable  by 
any  action.       Id. 

4.  Composition  Aoreement  is  Made  Void  as  aoainst  All  Innocent  Par- 

ties thereto,  by  any  agreement  between  the  debtor  and  one  of  his  credi- 
tors whereby  the  latter  is  given  any  preference  over  the  others.     Id. 

5.  Crkditob  Gciltt  or  Fraud  in  CoMPOsmoN  Agreement  by  stipulating 

for  a  secret  preference  in  favor  of  himself  is  bonnd  by  sach  agreement, 
and  can  obtain  no  immunity  therefrom  by  proving  other  like  frauds  in 
mch  agreement,  of  which  he  was  not  advised  at  the  time  of  ita  ezeoo* 
tion.    Id. 

See  NaooTiABLB  Instruments,  IS,  16w 

ACCOUNTINO. 
See  Partition,  2. 

ACCOUNTS. 
See  Evidence,  1,  2,  Sk 

AGENCY. 

1.  Agent  will  not  in  Equttt  be  PERMnrxD  to  Psorrr  by  his  negfigeao* 

toward  bis  principal.     Mitchell  v.  Attn,  231. 

2.  Agent  will  not  be  Protected  as  against  his  Principal  who  is  seeking 

to  foreclose  a  mortgage  on  land  which  such  agent  has  purchased  from  an 
innocent  holder  of  a  deed  therefor,  when  the  claim  to  priority  under 
such  deed  is  based  on  the  negligence  of  the  agent  in  delaying  the  record* 
ing  of  such  mortgage.    Id. 
AM.  St.  £».,  Vol.  L — 6S  911 


914  Index. 

8.  Enowuedob  of  Fact  Aoquikkd  bt  Agent  at  Tnra  when  He  is  not  Act- 
INO  A3  Such,  if  actually  had  in  mind  by  him  when  afterwards  acting 
for  his  principal,  will,  as  respects  that  transaction,  be  imputed  to  the 
princip^      Wilton  v.  Minnesota  etc  Ins.  Aaa^  659. 

4.  Where  WEiTiNa  is  Intrusted  to  Another,  with  Blanks  to  be  Tilled, 
he  has  no  authority  to  so  fill  them  as  to  vary  or  pervert  the  scope  or 
meaning  of  the  words  previously  written  or  printed,  nor  to  strike  out 
any  of  the  written  or  printed  words,  and  replace  them  with  others  of  a 
substantially  different  signification.  Harris  v.  Bank  qf  Jacksonville,  201. 
See  CoBFOBATioNs;  Factors;  Insubanoe;  Husband  and  Wife. 

ALIENS. 
See  JuBT  AND  Jurors,  8. 

ALTERATION  OF  INSTRUMENTS. 

1.  Burden  of  PiioviNa  Alterations  in  Wbitino  ajteb  its  Execution 

rests  upon  him  who  alleges  it;  but  the  burden  shifts  from  him  to  hia 
adversary,  if  the  writing,  on  being  produced,  appears  to  have  been  al- 
tered in  any  substantial  particular.     Harris  v.  Bank  of  Jacksonxille,  201. 

2.  Apparent  and  Material  Alteration  in  WamNO  must  be  explained  by 

the  party  who  offers  it  in  evidence.     Id. 

8.  Thebb  is  No  Appabent  Alteration  of  Paper  where  there  is  no  inter- 
liueation,  erasure,  difference  in  handwriting,  change  of  figures  or  words, 
nor  any  irregularity  on  the  face  of  the  paper  calculated  to  arouse  sus- 
picion. An  alteration  of  a  bill  is  not  presumed  because  the  words,  "Pay- 
able at  Metropolitan  Nat.  Bank,  New  York  City,"  are  written  across 
the  bill  in  the  handwriting  of  the  drawer,  and  above  the  acceptance.   Id. 

i.  Evidence.  — The  death  of  one  of  the  parties  to  a  receipt,  acceptance,  or 
other  writing,  precludes  the  survivor  from  testifying  against  the  assignee 
or  representative  of  the  decedent,  with  respect  to  an  alleged  alteration 
thereof,  although  the  decedent  acted  on  behalf  of  a  partnership,  pro* 
vided  his  copartners  were  not  present  at  the  time  the  writing  was  eze* 
cated,  and  tiierefore  can  give  no  evidence  with  respect  thereto.  Id. 
See  Agency,  4. 

ANIMALS. 
See  Common  Cabbiebs,  4,  7-10. 

APPEALS. 
See  Pleading  and  PBAcnoB. 

ARBITRATION  AND  AWARD. 
Claim  Which  is  Illegal  and  Absolutelt  Fobbidden  bt  Statute  can- 
not lawfully  be  made  the  subject  of  arbitration.    BiM  y.  Kimmer,  S15. 

ARREST. 
In  Michigan,  No  Abrest  can  be  Made  fob  Misdembanob,  unless  bt 
Wabbant,  upon  complaint  duly  made,  or  by  an  officer  or  by-stander 
who  actually  sees  the  offense  which  constitutes  the  misdemeanor.    Eost 
y.  LeggeU,  608. 

See  False  Imprisonment. 


Index.  915 

ASSIGNMENTS. 
See  Landlord  and  Tenant,  9,  10. 

ATTACHMENTS. 
L  Attachmknt  xmDEB  Writ  against  Vendor  of  property  in  possession  of 
vendee,  tinder  contract  of  purchase,  is  neither  a  lien  on  the  property  nor 
on  the  unpaid  purchase-money.     Burhe  v.  Johnson,  252. 

2.  Attachment  Lien  is  not  greater  than  that  created  by  a  judgment.     Id. 

3.  Plaintiff  Levying  Attachment  is  not   Purchaser,  and  is  therefor* 

affected  by  prior  transfers  of  which  he  has  no  notice.     Id. 

4.  Return  on  Attachment  is  Sufficient  as  8^;aiust  a  collateral  attack, 

when  it  states  that  the  officer  "duly  levied  upon  all  the  right,  title,  and 
interest  of  the  defendant  in  and  to  the  following  real  property,  to  wit " 
(describing  the  land  in  controversy).     Anderson  v.  Ooff,  34. 

6.  After  Attachment  of  Property,  No  Order  of  Sale  is  necessary  to 
authorize  the  sale  thereof,  the  lien  of  the  attachment  continues  after 
taking  a  simple  money  judgment,  without  embodying  therein  any  direc- 
tions for  the  sale  of  the  attached  property.     Id. 

6.  Judgment  Debtor  may  be  Garnished  by  delivering  to  him  a  copy  of  th* 
writ  of  execution,  with  a  notic»  in  writing  stating  that  all  his  righ^ 
title,  and  interest  in  such  judgment,  and  all  moneys,  goods,  credits,  and 
effects  due  or  owing  by  him  to  the  judgment  creditor  are  levied  npoo. 
Dore  V.  Dougherty,  48. 

ATTORNEY  AND  CLIENT. 

1.  Attornzt  at  Law  is  Forbidden  to  purchase  an  interest  in  the  thing  in 

controversy  adverse  to  his  client.    Cunningham  v.  Jones,  257. 

2.  Purchase  by  Attorney  is  not  voidable  merely,  but  void  absolutely  when 

it  is  of  an  interest  in  property  adverse  to  a  client  for  whom  he  is  then 
acting.     Id. 

3.  Tax  Deed  Made  to  Attorney  at  Law  is  Void,  if  the  owner  of  the  land 

was  the  client  of  such  attorney  at  the  time.     Id. 

4.  Privileoed  Communication  must  be  Made  for  Purpose  or  Obtainxno 

Legal  Advice  upon  the  client's  business  or  interests.  A  conversation 
between  two  persons  in  tbo  presence  of  an  attorney,  employed  by  them 
to  prepare  a  paper  in  connection  with  the  subject  of  the  conversation,  is 
not  privileged,  and  the  testimony  of  the  attorney  concerning  the  cod* 
versation  is  competent.  Ilouae  v.  House,  570. 
See  Process,  4. 

BANKS  AND  BANKING. 

L  Bank  is  kot  Liabui  to  Pay  Check  Drawn  rasRiOH  by  a  depontor,  •>• 
cept  by  its  acceptance  thereof  in  writing.  Lynch  v.  Firtt  Jfatimal  Bant, 
803. 

2.  Bank  Acoxfts  Check  Drawn  thkrxon,  when  it  indorses  upon  it  a  oertifi« 
cate  of  genuineness,  and  directs  its  payment  at  another  bank.  Such  in- 
dorsement is  equivalent  to  a  representation  that  the  drawer  has  funds  in 
the  bank  with  which  to  pay  the  chock,  and  that  tho  bank  will  retain 
such  funds  and  pay  the  chock  at  the  bank  designated     Id. 

8.  Relation  between  Bank  and  DKPOttiTou  is  that  of  debtor  and  creditor, 
and  the  bank  holds  tho  fund  subject  to  bo  paid  out  to  the  creditor,  ao- 
cording  to  the  terms  and  conditions  imposed  by  him.     Id, 


916  Index. 

4.  Chick  Drawn  by  Depositor,  Payable  to  Himself  or  Order  and  ac- 

cepted  by  the  bank,  does  not  impose  on  it  any  obligation  to  pay  the 
check  to  one  to  whom  the  drawer  delivered  the  check  without  indorse- 
ment, in  payment  of  a  purchase  made  by  him.     Id. 

BILLS  OF  LADING. 
See  Common  Carriers. 

BONA   FIDE   PURCHASERS. 

1.  FuitCHASKB  IS  Chaboed  WITH  NoTiCE  that  his  grantor  held  title  by  what 

equity  must  declare  to  be  an  invalid  deed,  when  such  grantor  was  out  of 
and  had  never  been  in  possession,  and  others  had  controlled  the  property 
in  many  ways  for  many  years,  and  when  an  examination  of  the  registry 
of  deeds  would  have  shown  conveyances  inconsistent  with  the  full  valid- 
ity of  the  deed  under  which  the  grantor  claimed,  and  when  the  purchase 
was  for  a  grossly  inadequate  price.     Knapp  v.  BaUey,  295. 

2.  Fact  that  Purchaser  Accepts  Qcttclaim  Deed  is  a  circumstance  enti« 

tied  to  consideration  in  determining  whether  he  is  a  bona  jidt  purchaser 
without  notice.     Id. 
8.  Notios  of  Trust.  — Provision  of  the  Revised  Statutes  of  Maine,  declaring 
that  a  purchaser  for  a  valuable  consideration  cannot  be  defeated  by  a 
trust  of  which  he  has  no  notice,  means  actual  notice.     Id, 
See  Deeds. 

BONDS. 
See  Corporations,  8;  Replevin,  6. 

BOUNDARIES. 
See  Deeds,  4. 

BRIBERY. 
See  Criminal  Law,  11. 

CHECKS. 
See  Banks  and  Banking. 

COMITY. 
See  Corporations. 

COMMON   CARRIEBS. 
1.  Petition  in  Action  against  Common  Carrier  alleging  the  delivery  and 
loss  of  the  property  through  negligence  in  managing  and  operating  the 
train  is  sufficient.     McFadden  v.  Missouri  Pacific  Ry  Co.,  721. 

5.  Common  Carrier  cannot  by  Any  Sort  of  Stipulation  exempt  himself 

from  the  consequences  of  his  negligence,  though  he  may,  by  special  or 
express  contract,  or  special  acceptance,  fairly  and  nnderstandingly  made, 
limit  his  common-law  liability.  Id. 
8.  Where  Mules  are  Delivered  to  Common  Carrier,  and  the  car  in  which 
they  are  transported  is  bedded  with  straw,  and  placed  next  to  the  en- 
gine, which  placing  of  the  mules  is  unusual,  dangerous,  and  negligent, 
And  the  car  is  set  on  fire  from  sparks  emitted  by  the  engine,  and  tiie 


I 


Index.  917 

mules  thereby  destroyed,  a  stipulation  in  the  bill  of  lading  that  the  car- 
rier is  not  liable  for  "the  risk  of  loss  or  injury  to  the  mules  by  fire,  or 
any  account  whatever,"  is  so  far  invalid,  and  no  protection  to  him.     Id. 

4.  All  Prior  Verbal  Negotiations  between  Shipper  and  common  carrier 
are  merged  in  the  bill  of  lading  or  contract  of  shipment,  and  the  ship- 
per cannot  admit  the  execution  of  the  contract,  and  avail  himself  of  the 
fact  that  he  did  not  read  the  same,  or  know  its  contents,  where  no  mis- 
take, fraud,  imposition,  or  deceit  is  charged.     Id. 

6.  Bill  of  Lading,  or  Contract  of  Shipment,  stipulating  for  a  reduced  or 
special  rate  of  freight,  is  not  conclusive,  but  only  jnmafadt  evidence, 
open  to  explanation  and  contradiction.     Id. 

6.  Where  Bill  of  Lading  Falsely  Recites  that  a  special  and  reduced  rat« 

of  freight  is  given,  and  the  shipper,  in  consideration  therefor,  agrees 
to  accept  a  limited  valuation  for  the  property  transported,  in  case  of  ita 
loss  through  the  negligence  of  the  carrier,  the  contract  is  not  bind- 
ing on  the  shipper,  and  the  stipulation  as  to  limited  valuation  is  void, 
as  releasing  the  carrier  for  his  liability  for  negligence.     Id. 

7.  Person  Transportino  Live-stock  Assttmes  with  Respect  to  It  Cox« 

MON-LAW  Relation  of  a  common  carrier  with  the  incident  duties  and 
obligations,  subject,  however,  to  the  modification  that  he  is  not  an  in- 
surer, as  respects  injuries  resulting  without  his  fault  from  the  inherent 
nature  and  propensities  of  the  animals  themselves.  Lindskjf  t.  Chicago 
etc.  R'p  Co.,  692. 

8.  Burden  of  Proof  that  Causb  of  Death  of  Live-stock  in  CkxjBsa  ow 

Transportation  was  within  the  exception  qualifying  his  general  liability 
is  upon  the  carrier.     Id. 

9.  Instruction  to  Jury  that  Defendant  must  Prove  to  their  Satisfac- 

tion, by  a  proponderanca  of  the  evidence,  that  death  of  live-stock  in 
course  of  transportation  resulted  from  some  other  cause  than  the  (defend- 
ant's negligence,  means  no  more  than  that  the  defendant  should  estab- 
lish that  fact  by  what  the  jury  should  deem  to  be  the  weight  of  evidence. 
And  there  is  no  error  in  the  form  or  terms  of  such  instruction.     Id. 

10.  Expert  Witness  may  be  Asked  What  C!ourse  Carrier  might  Prop- 
erly Pursue  for  Relief  of  Live-stook  suffering  greatly  from  heat, 
while  in  transit  in  a  railroad  car.     Id. 

11.  Ant  Notice  by  Consignor  to  Carrier  to  stop  the  goods  in  transit  is 
sufficient;  no  particular  form  of  notice  is  required.  AUen  v.  Mcune  Cen' 
tral  R.  R.  Co.,  310. 

12.  Consignor  Exercising  Right  of  Stoppage  in  Transitu  must  act  in  good 
faith  toward  the  carrier,  but  if  after  giving  notice  to  stop  the  goods,  and 
furnishing  reasonable  evidence  of  the  validity  of  his  claim  in  due  time 
by  forwarding  the  invoice  and  his  affidavit  of  ownership,  the  carrier  re- 
fuses to  stop  the  goods,  he  must  respond  in  damages.     Id. 

13.  Passenger  Riding  on  Freight  Train,  by  direction  and  permission  of 
the  conductor,  and  without  notice  that  his  so  riding  is  against  the  rules 
of  the  company,  is  entitled  to  the  same  rights  as  if  he  were  riding  on 
a  passenger  train.     McOee  v.  MUaouri  Pacijic  R'y  Co.,  706. 

14.  If  Passengers  are  Habitually  Carried  on  Railway  Company's 
Freight  Trains,  one  who  is  received  as  a  passenger  on  such  train  is  en- 
titled to  the  same  degree  of  care  as  passengers  on  regular  trains,  except 
that  in  taking  the  freight  train,  accepting  and  traveling  upon  it,  he  ao- 
qoiesoes  in  the  usual  incidents  and  conduct  of  such  train,  managed  by 
prudent  and  competent  men.     Id. 


918  Index. 

18.  When  is  Action  against  Railroad  Company  for  injuries  received  by 
one  in  alighting  from  a  freight  train,  on  which  he  was  regularly  received 
and  traveling  as  a  passenger,  it  appears  that  the  train  was  not  stopped 
at  the  usual  place,  where  it  was  safe  for  passengers  to  alight,  but  at  aa 
unusual  place,  where  it  was  unsafe  and  dangerous,  and  where  the  regu- 
lar station  was  announced,  thereby  inviting  the  party  injured,  nothing 
to  the  contrary  appearing,  to  get  off  when  and  where  it  stopped,  and 
the  night  was  very  dark,  and  passengers  in  the  caboose  could  not,  for 
that  reason,  see  the  danger,  and  the  conductor,  on  leaving  the  caboose 
with  the  light,  could  or  might  have  seen  it,  his  failure  to  warn  and  in- 
form the  passengers  of  the  danger  was  gross  negligence,  for  which  the 
company  is  liable.     Id. 

16.  Slowing  tip  of  Freight  Train  carrying  passengers,  as  it  approached  a 
regular  station,  the  sounding  of  the  whistle,  the  announcement  by  the 
brakeman  of  the  station,  stopping  the  train,  the  act  of  the  conductor 
and  brakeman  leaving  the  caboose  with  the  light,  and  the  detachment  of 
the  engine  to  take  water,  can  be  construed  only  as  a  direction  to  the 
passengers  to  alight,  then  and  there,  and  they,  in  absence  of  proof  to 
the  contrary,  have  the  right  to  conclude  that  it  is  a  safe  place  to  alight, 
and  if  one  receives  injury  in  so  doing,  because  the  place  is  dangerous, 
the  company  is  liable.     Id. 

17.  In  Action  against  Railroad  Company  for  injury  received  while  trav- 
eling as  a  passenger  on  a  freight  train,  evidence  is  admissible  to  prove 
that  it  was  the  custom  and  usage  of  the  company  to  carry  passengers  on 
their  freight  trains.     Id. 

18.  Evidence  is  Admissible  to  Prove  that  the  station  announced  is  the 
stopping-place  for  freight  trains,  in  an  action  against  a  railroad  company 
for  injury  received  while  traveling  as  a  passenger  on  such  train.     Id. 

COMPOSITION. 
See  Accord  and  Satisfaction. 

CONFLICT  OF  LAWS. 
See  Executors  and  Administrators. 

CONSTITUTIONAL  LAW. 

1.  Constitutional  Provision  Requiring  Amendments  to  Constitution  to 

be  Entered  on  the  journals  of  the  senate  and  assembly  is  satisfied  by 
the  entry  on  such  journals  of  an  identifying  reference.  The  amend- 
ment  need  not  be  copied  in  full  upon  such  journal.  Oakland  Paving  Co. 
V.  TompJnns,  17. 

2.  To  Enter  Primarily  Means  to  Go  in  or  to  Comb  in.    It  also  some- 

times means  to  register  the  essential  fact  concerning  the  thing  said  to  be 
entered.     Id. 

8.  Words  Used  in  Constitution  will  bk  Accorded  their  popular  rather 
than  their  technical  signification,  unless  the  nature  of  the  subject,  or 
the  text,  suggests  their  use  in  their  technical  sense.  They  must  be 
taken  in  their  ordinary  and  common  acceptation,  because  they  are  pre- 
sumed to  have  been  so  understood  by  their  framers  and  by  the  people. 
Miller  v.  Dunn,  67. 

4.  Word  "Law,"  as  Used  in  Constitution,  generally  signifies  a  Btatute, 
bill,  or  legislative  enactment,  regardless  of  its  constitutionality  or  valid* 
ity.    Id. 


Index.  919 

6.  Statutes  will  not  be  Adjttdoed  UNCX)NaTrnmoifAL,  if  there  is  a  fair 

doubt  as  to  their  validity.     Id. 
8.  Unconstitutional  Law  is  not  Void  ab  Initio  in  All  Cases.     It  will 
protect  citizens  dealing  with  public  officers  under  its  proTisions  until  it 
is  adjudged  unconstitutional.     Id. 

7.  Constitutional  Law.  —  Legislature  may  authorize  payment  of  a  claim 

created  under  and  by  virtue  of  an  unconstitutional  law,  though  it  is  de- 
clared by  the  constitution  to  have  no  power  to  authorize  the  payment  of 
any  claim  created  without  express  authority  of  law.     Id. 

8.  Constitutional  Law  —  Local  Law.  —  Statute  relating  to  cities  of  more 

than  five  hundred  thousand  inhabitants  is  not  a  local  or  private  law. 
People  V.  Squire,  893. 

9.  Law  is  not  Privatb  or  Local  Law,  although  it  may  happen  that  the 

persons  or  companies  whose  operations  are  controlled  by  such  law  ar« 
few  in  number,  and  all  doing  business  in  one  or  more  cities  of  the  state. 
Id. 

10.  Constitutional  Law.  —  Statute  Which  Provides  Methods  to  Carrt 
out  and  more  conveniently  or  adequately  enforce  a  prior  statute,  without 
inserting  the  latter  statute  as  a  part  of  its  provisions,  is  not  forbidden  by 
section  17  of  article  3  of  the  constitution  of  New  York,  declaring  that 
"  no  act  shall  be  passed  which  shall  provide  that  any  existing  law,  or 
any  part  thereof,  shall  be  made  or  deemed  a  part  of  said  act,  or  which 
shall  enact  that  any  existing  law,  or  any  part  thereof,  shall  be  applicable, 
except  by  inserting  it  in  such  act. "    Id. 

11.  Constitutional  Law.  — Statute  does  not  Impose  Tax  which  requires 
of  corporations  the  performance  of  certain  duties,  the  expenses  of  which 
are  to  be  paid  in  the  first  instance  by  the  state,  but  are  to  be  refunded 
by  the  corporation.     Id. 

12.  Unconstitutional  Provision  in  Statute  Which  mat  be  EIliicinatbd 
without  impairing  the  general  scheme  of  the  act  vitiates  so  much  of  the 
statute  only  as  may  be  declared  unconstitutional.     Id. 

18.  Statute  is  not  Unconstitutional  Which  Requires  Corporations 
Owning  Telegraph,  Telephone,  Electric,  or  other  wires  or  cables 
to  remove  them  from  the  surface  of  the  street»  and  place  them  under 
the  ground,  and  in  the  event  of  their  not  doing  so,  empowering  the  city 
to  make  such  removal  at  their  expense;  and  which  further  provides  that 
three  commissioners  shall  be  appointed  to  enforce  the  provisions  of  the 
statute  by  causing  the  removal  of  the  wires  and  cables;  and  imposes  on 
the  companies  the  duty  of  filing  with  such  commissioners  a  map,  showing 
the  streets  or  highways  which  the  companies  desire  to  nse,  and  the  general 
location,  dimensions,  and  course  of  the  underground  conduits  desired  to 
be  constructed,  and  forbids  the  construction  of  such  conduits  unless  the 
plan  of  construction  is  approved  by  such  commissioners.  These  statu- 
tory provisions  do  not  impair  pre-existing  franchises,  but  merely  regulate 
the  mo<le  of  their  enjoyment,  to  the  end  that  due  regard  may  be  hatl  to 
the  rights  of  others,  and  in  such  a  way  that  the  wires  and  cables  should 
cease  to  bo  a  public  nuisance,  and  be  enjoyed  in  such  a  manner  as  to 
inconvenience  and  endanger  the  public  as  little  as  possible.    Id. 

14.  PoucE  Power  or  State  Embraces  its  system  of  internal  regolatioDby 
which  it  is  sought  to  preserve  the  poblic  order,  and  to  prerent  offenses 
against  the  state,  and  also  to  establi^  for  the  intercourse  of  citiaen  with 
citizen,  those  rules  of  good  manners  and  good  neighborhood  which  are 
calculated  to  prevent  a  conflict  of  rights,  and  to  insure  to  each  the  nnia- 


920  Index. 

termpted  enjoyment  of  his  own,  so  far  aa  is  reasonably  consistent  with 
a  like  enjoyment  of  rights  by  others.  Id. 
16.  KioHT  TO  Exercise  Police  Power  cannot  be  Alienated,  surrendered, 
or  abridged  by  the  legislature  by  any  grant,  contract,  or  delegation  what- 
soever. Hence  no  legislative  grant  can  confer  upon  any  corporation 
beyond  the  control  of  subsequent  legislative  action  the  power  to  tear  up 
the  streets  of  a  city  at  such  times,  in  such  places,  and  under  such  cir- 
cumstances as  such  corporation  may  determine,  regardless  of  the  public 
•  convenience  and  welfare  and  the  rights  of  other  claimants.    Id. 

16.  Statute  Intended  to  Restrain  or  Suppress  Manupacture  and  Salb 
OP  Oleomargarine,  and  like  compounds  resembling  and  intended  aa  a 
substitute  for  butter,  is  valid,  aa  a  legitimate  exercise  of  the  police 
power  of  the  state.  Such  legislation  is  justified  upon  the  ground  that 
the  use  of  the  inhibited  compounds  is  injurious  to  the  public  health. 
BiUler  v.  Chambers,  638. 

17.  Provisions  op  Section  4  op  Chapteb  149,  Laws  op  1885,  are  Leqiti* 
MATELY  Connected  with  Subject  of  the  act,  and  included  therein,  and 
therefore  the  act  is  not  repugnant  to  article  4,  section  27,  of  the  consti* 
tution  of  Minnesota.    Id, 

18.  State  Senate  has  Power  to  Inquirb  into  Alleged  Abuses  op  Public 
Power  and  the  corruption  of  public  officers,  and  to  delegate  the  duty  of 
making  such  inquiry  to  one  of  its  committees.  Such  committee  may 
compel  the  attendance  of  witnesses,  and  on  their  refusal  to  answer  may 
commit  them  for  contempt.    People  v.  Sharp,  851. 

CONTEMPT. 
See  Constitutional  Law,  16. 

CONTRACTS. 

1.  In  All  Caees  Contract  should  be  so  Construed  as  to  Carrt  into  Efpect 

the  intention  of  the  parties,  and  such  intent  must  be  ascertained  from 
the  language  of  the  instrument,  and  the  facts  and  circumstances  attend- 
ing its  execution.     Mathews  v.  PJielps,  581. 

2.  Rule  that  Parol  Evidence  is  Inadmissible  to  Contradict  or  Vart 

Written  Contract  applies  only  to  a  written  contract  which  is  in  force 
as  a  binding  obligation.     McFarland  v.  Sikes,  111. 

8.  Written  Contract  mat  be  Delivered  upon  Condition,  but  it  does  not 
become  a  binding  obligation  until  the  condition  upon  which  its  delivery 
depends  has  been  fulfilled.    Id. 

4.  To  Render  Executory  Contract  Valid,  Both  Parties  thereto  must 
BE  Bound  by  it,  and  no  action  to  recover  damages  for  the  non-per- 
formance of  a  contract  which  is  not  binding  upon  both  parties  can  be 
maintained.  Where,  therefore,  an  instrument  in  writing  under  seal, 
purporting  to  be  a  lease,  provides  that  it  shall  not  be  binding  on  the 
lessee  in  any  way  until  he  shall  be  appointed  and  installed  by  the  proper 
officers  of  a  certain  railroad  company  as  freight  and  ticket  agent  of  said 
company  at  a  particular  station,  such  lessee  cannot  maintain  an  action 
for  damages  for  the  non-performance  of  the  contract  until  he  has  been 
so  appointed  and  installed,  although  he  elects  that  the  lease  shall  be 
binding  upon  him,  and  demands  possession  of  the  premises  'demised. 
King  V.  Warfield,  384. 


Index.  921 

6.  Contract  Entered  into  bt  Party  Who  is  so  DEtrNK  as  not  to  Know 
What  He  is  Doing  is  Voidable  onlt,  and  not  void,  and  may  be  rati- 
fied by  Buch  party  when  he  becomes  sober.     Carpenter  v.  Rodgers,  595. 

6.  Burden  of  Proo?   Rests  upon    One  Clatminq  to  be  Spiritualistio 

Medium,  to  show  that  a  contract  made  by  him  with  one  having  im- 
plicit belief  in  the  existence  of  tho  powers  claimed  by  such  mediam 
was  free  from  undne  influence.     Connor  v.  Stanley,  84. 

7.  Eelation   op  Peculiar  Trust  and  Confidence  Exists  between  Ab- 

SUHED  Spiritualistio  Medium  and  a  believer  in  his  alleged  powers^ 
which  raises  the  presumption  that  an  advantage  obtained  by  the  former 
over  the  latter  resulted  from  undue  influence.     Id. 

8.  Contract  in  Restraint  of  Trade  is  Valid,  if  it  imposes  no  restriction 

upon  one  party  not  beneficial  to  the  other,  and  was  induced  by  a  con> 
sideration  which  made  it  reasonable  for  the  parties  to  enter  into  it. 
Hodgt  V.  Sloan,  816. 

9.  Relation  of  Debtor  and  Creditor  must  be  Created  and  Subsist  di 

Lifetime  of  the  parties  to  an  instrument  in  order  to  make  it  a  valid 
obligation  for  the  payment  of  money,  though  the  time  of  payment  may 
be  deferred  untd  after  the  death  of  one  of  the  parties.    Cover  v.  Stemy  406. 

10.  Instrument  in  Following  Form  ls  Testamentary  in  Charaoter,  and 
not  an  obligation  for  the  payment  of  money,  and  no  recovery  thereon  can 
bo  had  against  the  executor:  "Md.,  September  4, 1884.  At  my  death, 
my  estate  or  my  executor  pay  to  July  Ann  Cover  the  sum  of  three  thou- 
sand dollars.  David  Engel,  of  P.  [Seal]  Witness:  Columbus  Cover," — 
although  it  was  delivered  to  the  person  to  whom  payment  was  directed 
to  be  made.  And  its  construction  cannot  be  affected  by  the  fact  that  it 
must  fail  of  effect  as  a  testamentary  paper,  because  of  insufficient  wit- 
nesses under  the  statute.     Id. 

See  Corporations;  Oaking;  Infancy;  Statutb  of  Frauds. 

CORPORATIONS. 

1.  Corporation,  when  Acting  within  Scope  of  its  Aothoeity,  has  all  th» 

powers  of  ordinary  persons,  and  when  so  acting,  its  contracts,  whether 
sealed  or  unsealed,  written  or  unwritten,  are  valid.  Deringer  ▼.  Derin- 
ger,  150. 

2.  Drafts  Accepted  by  Treasurer  of  Corporation  ark  Presumed  to  bb 

Properly  Accepted  by  the  corporation,  there  being  no  circumstances 
to  indicate  fraud  or  illegality;  and  in  an  action  by  the  holder  against  the 
corporation  as  acceptor,  the  burden  of  proof  is  upon  the  defendant  cor- 
poration to  show  that  the  plaintiff  had  knowledge  that  the  acceptances 
were  for  accommodation,  and  that  he  was  not  a  bona  Jxde  bolder  for 
value.     Credit  Compan;/,  Limited,  v.   Howe  Machine  Co.,  123. 

8.  Corporation  having  Power  to  Deal  in  Mercantile  Paper  Necxssabt 
TO  ITS  Business  is  Bound  by  acceptances  of  accommodation  paper  by  its 
trvasnrer,  except  as  against  those  having  notice  that  tho  paper  was  for 
accommodation.     Id, 

4.  Pbbsons  Dealing  in  Commercial  Paper  of  Corporation  are  Bound 
to  Take  Notice  of  the  extent  of  its  power,  but  are  not  required  to  bar* 
knowledge  of  the  circumstances  under  which  it  is  exercised.  And  espe- 
dally  is  this  so  where  the  agent  or  officer  of  the  corporation  which  exar- 
dsM  the  power,  at  the  same  time  represents  the  corporation,  and  spaaks 
for  it  in  giving  information  as  to  the  circumstances.    Id. 


922  Index. 

8.  Pkbson  Dealing  with  Corporation  is  Bound  to  Know  whbther  or  hot 

the  officer  or  agent  who  represents  it,  and  acts  in  its  name,  is  anthorized 
80  to  do.  If  he  is,  and  the  act  Is  within  the  apparent  scope  of  his  an* 
thority,  the  dealer  is  not  bound  to  have  knowledge  of  eztrinsio  facts 
making  it  improper  for  him  to  act  in  that  case.     Id. 

6.  CJORPORATION  MAY  BE  TRUSTEE  BoTH  OF  ReaL  AND  PERSONAL  PROPERTY, 

and  its  authority  as  snch  is  the  same  as  that  of  an  individual  so  acting. 
Deringer  v.  Deringer,  160. 

7.  CORPORATION,    UNLESS  PROHIBITED    BY    ITS  CHARTER  or   by  Statute,    haS 

power  to  make  all  contracts  requisite  for  the  purposes  for  which  it  was 
created.     Id. 
8).  Foreign  Corporation  has  Full  Power  to  Execute  Bond,  and  when 
this  is  done,  it  has  complied  with  the  law  of  this  state  as  to  the  qualifi- 
cation  of  a  foreign  administrator.     Id. 

9.  By-law  of  Corporation  must  be  Regarded  ^a  Contract  between  the 

corporation  and  its  stockholders,  when  it  states  the  conditions  ou  which 
dividends  are  to  be  paid,  as  between  preferred  and  unpreferred  stock. 
Haaeltine  v.  Belfast  etc.  R.  R.  Co.,  330. 

10.  Ik  Declaring  Dividends  on  Preferred  Stock,  the  arrearages  of  ons 
year  cannot  be  paid  out  of  the  earnings  of  a  subsequent  year,  when  the 
by-law  of  the  corporation  upon  the  subject  implies  that  the  entire  net 
earnings  of  each  year  shall  be  paid  out  in  dividends.     Id. 

11.  Profits  Generally  Mean  the  gain  which  comes  in  or  is  received  from 
any  business  or  investment  where  both  receipts  and  payments  are  to  ba 
taken  into  account.     Id. 

12.  Profits  for  Year  Mean  the  surplus  receipts  after  paying  expenses,  and 
restoring  the  capital  to  the  position  it  was  in  on  the  first  day  of  the  year. 
Id. 

13.  Net  Earnings  of  Railroad  abe  Gross  Receipts  less  the  expenses  of 
operating  the  road  to  earn  snch  receipts.  Among  these  expenses  is  in« 
eluded  interest  on  debts.     Id. 

14.  Rights  of  Preferred  Stockholders  are  Enforceable  against  the  cor- 
poration according  to  the  terms  of  the  contract  made  by  them.    Id. 

18.  Dividends  may  be  Paid,  although  the  corporation  is  not  free  from  float- 
ing debt.    Id. 

16.  Preferred  Stockholders  are  Entitled  to  Dividends  from  earnings  on 
hand,  without  first  making  provision  for  the  payment  of  the  principal  of 
the  bonded  debt,  where  the  corporation  is  in  good  circumstances  and 
credit,  and  could  doubtless  provide  for  an  extension  of  the  time  for  pay- 
ing such  debt,  or  make  payment  by  the  issue  of  other  bonds.     Id. 

17.  Equity  will  Compel  Directors  of  Corporation  to  Declare  Dividend 
in  favor  of  holders  of  preferred  stock,  who  are  shown  to  be  entitled 
thereto.     Id. 

18.  One  does  not  Become  Liable  as  Stockholder  in  Corporation  by  the 
issuing  to  him  by  the  corporation  of  stock,  when  the  entry  in  the  stock- 
book,  and  all  the  other  records  of  the  corporation,  show  that  such  stock 
was  issued  as  collateral  security.  To  make  one  answerable  as  a  stock- 
holder to  creditors  of  a  corporation,  he  must  be  a  stockholder  as  between 
himself  and  the  corporation.  Union  Bavmga  Agaodation  v.  Seligman, 
776. 

19.  Estoppel.  —  Voting  as  a  stockholder  at  an  election  will  not  estop  the 
person  voting  from  showing,  in  an  action  against  him  by  the  creditors 
of  the  corporation,  that  he  was  not  a  stockholder  therein.     Id. 


Index.  923 

20.  Act  of  Votino  Stock  does  not  Make  Voters  Absolute  Stockhold- 
ers, either  as  between  themselves  and  the  corporation,  or  creditors  of  the 
corporation.  They  are  still  entitled  to  show  that  they  held  snch  stock 
as  collateral  security,  and  not  otherwise.    Id. 

21.  Comity  ok  One  State  will  Enforce  Laws  of  Another  State,  when 
such  enforcement  neither  violates  its  own  laws  nor  infringes  the  rights  of 
its  own  citizens;  and  on  like  terms  it  will  permit  a  corporation  of  another 
state  to  transact  business  within  the  state  into  which  it  comes.  Der^ 
inger  v.  Deringer,  150. 

22.  Right  of  Foreign  Corporation  to  do  Business  within  this  state  can- 
not  be  called  in  question  except  by  the  state  itself.     Id. 

23.  It  is  not  Necessart  under  Michigan  Statute  (How.  Stat.,  Sec.  8145) 
THAT  Officer  or  Agent  of  Foreign  Corporation,  upon  whom  service 
is  made  while  in  the  state,  should  be  in  the  state  upon  official  businesa 
for  his  corporation,  or  be  specially  authorized  by  it  to  receive  service  of 
process.  He  must  be  presumed  and  held  to  be  such  officer  for  the  pur- 
poses of  the  statute,  and  he  cannot  throw  o£f  his  representative  capacity 
at  will,  in  order  to  defeat  its  manifest  object.  Sldckle  etc  Iron  Co.  ▼. 
Construction  Co.,  571. 

24.  Insurance  Company,  Incorporated  in  One  State,  Waives  Any  Ob- 
jection to  Exercise  of  Jurisdiction  by  Coitbts  of  Another  State, 
by  appearing  generally  and  answering  to  the  merits,  in  a  suit  in  equity 
against  it,  brought  by  a  resident  of  the  former  state,  who  had  there 
taken  out  a  policy  on  the  tontine  savings  fund  assurance  plan,  to  obtain 
an  account  of  the  surplus  or  profits  derived  from  such  policies  as  should 
cease  to  be  in  force  before  the  completion  of  their  respective  tontine 
periods,  which  were  to  be  apportioned  equitably  among  such  policies  as 
should  complete  such  periods.     Pierce  v.  Equitable  Life  Int.  Society,  433. 

8«e  Executors  and  Administrators;  Insurance;  Mandamtts;  Municipal 

Corporations. 

COSTS. 

1.  Costs  in  Criminal  AcnoNs  are  Unknown  at  common  law,  and  are  only 

given  by  statute.     Bennett  v.  Kroth,  248. 

2.  Costs  are  Statutory  Allowance  to  a  party  to  an  action  for  his  expenses 

incnrred  in  such  action,  and  have  reference  only  to  the  parties  and  th« 
amoonta  paid  by  them.     Id. 

CO-TENANCY. 

1.  Tenant  in  Common  mat  Maintain  AcnoN  or  Indebitatus  AaBUicrarr 

against  his  co-tenant  who  has  received  more  than  his  share  of  the  renta 
and  profits,  and  this,  independently  of  section  20,  chapter  05,  of  tha  Ra* 
vised  Statutes  of  Maine.     Hudson  v.  Coe,  288. 

2.  Dispute  in  Title  will  not  Prevent  Tenant  in  Common  from  maintain* 

ing  an  action  of  indebitatus  iusumptit  against  his  oo-tenant  for  receiving 
more  than  his  share  of  the  rents  and  profits,  if  the  plaintiff  waa  not  dia- 
seised  of  his  estate  at  the  date  when  such  rents  and  profits  were  raoaived. 
Id. 

3.  In  Action  of  Indebitatus  Assumpsit  by  one  tenant  in  oomiiMn  againsl 

another,  the  plaintiff  cannot  recover  any  rents  and  profita  raoaivad  by 
dafend«it  before  plaintiff's  title  accrued.     Id. 

4.  One  Co-tenant  does  not  Disseisb  Another  by  entering  upon  the  land 

under  a  tax  deed,  and  exercising  such  acts  of  ownership  as  tracing  and 


924  Index. 

ranning  lines,  paying  taxes,  and  permitting  wild  grass,  and  occasionallj 
timber,  to  be  cut  from  year  to  year  on  various  portions  thereof.     Id. 
B.  Entrt  of  One  Co-tenant  is  Entry  of  All.     Id. 

6.  Possession  of  One  Co-tenant  is  Alwats  Presumed  to  be  in  accordance 

with  a  common  title  until  some  notorious  and  unequivocal  act  of  ezcli>- 
sion  occurs.     Id. 

7.  One  Tenant  in  Common  of  Personal  Property  may  Separately  Main- 

tain Action  for  a  wrong  done  to  it,  if  his  co-tenants  refuse  to  join  with 
him  as  plaintilFs,  and  they  are  non-residents  of  and  are  without  the  state. 
Peek  V.  AIcLean,  665. 

COUNTERCLAIM. 

1.  Counterclaim  is  Demand  of  Something  Whioh  of  Right  Belongs  to 

Defendant,  in  opposition  to  the  right  of  the  plaintiff.  It  may  also 
be  defined  as  a  claim  which,  if  established,  will  defeat  or  qualify  a  judg- 
ment to  which  plaintiff  would  otherwise  be  entitled.  Veiiahle  v.  Dutchf 
260. 

2.  Counterclaim  in  Ejectment. — An  answer  by  defendant  in  ejectment 

setting  up  a  tax  title,  and  also  a  judgment  in  his  favor  against  plaintiff 
quieting  his  title,  is  a  counterclaim.     Id. 

3.  Burden  of  Proving  Facts  Stated  in  his  Counterclaim  rests  upon  the 

defendant.     Id 

COVENANTS. 

1.  Covenant  by  Owner  of  Land  to  Use  or  to  Abstain  from  Using  It, 

in  such  a  manner  as  the  other  party  to  the  contract  specifies,  will  be  en- 
forced in  equity  against  the  grantees  of  the  original  covenantor.  Hodge 
V.  Sloan,  816. 

2.  Agreement  between  Grantor  and  Grantee,  that  Latter  will  not 

Sell  Any  Sand  off  of  Premises  conveyed  to  him  by  the  former, 
will  be  enforced  in  equity  against  the  grantee  and  his  successors  in  in- 
terest, where  it  appears  that  the  grantor  exacted  such  agreement  as  a 
condition  precedent  to  the  sale,  he  being  engaged  in  the  business  of  sell- 
ing sand  from  a  tract  of  land  of  which  the  premises  conveyed  consti- 
tuted but  a  small  part.     Id. 

3.  Right  to  Sub  for  Breach  of  Covenant  to  Surrender  Possession  is 

NOT  Waived  by  a  subsequent  action  of  ejectment  for  the  demised  prem- 
ises, in  which  the  recovery  of  damages  is  not  sought.  Cohurn  v.  OoodaU, 
75. 

4.  In  Determining  Amount  of  Damages  Sustahced  by  Failure  to  Sur- 

render Leased  Premises  to  the  lessor,  the  amount  of  profits  derived  by 
the  defendants  from  a  wharf  and  chute  adjacent  thereto  is  a  proper  sub- 
ject of  inquiry,  providing  it  is  not  taken  as  the  measure  of  damages.  It 
is  proper  to  put  the  court  in  possession  of  all  pertinent  facts  and  circum- 
stances from  the  consideration  of  all  of  which  the  ultimate  fact  of  the 
quantum  of  damages  can  be  deduced.  Id. 
See  Deeds,  9. 

CRIMINAL  LAW. 
1.  Confessions  are  Presumed  to  have  been  VoLUNTARiLy  Made,  in  the 
absence  of  all  evidence;  and  when  the  accused  alleges  the  contrary,  he 
is  called  upon  to  at  least  rebut  such  presumption.    Ptcfk  v.  Barker,  501. 


Index.  925 

9.  Etidekcb  or  Contessioks  is  Properly  Asiotted,  where  there  was  noth- 
ing at  the  time  of  their  admission  to  show  that  they  were  not  voluntary ; 
although  it  subsequently  appeared  that  a  prior  confession  had  been 
obtained  from  the  accused  by  such  artifice  and  deception  as  rendered 
evidence  thereof  incompetent;  but  had  the  facts  relating  to  the  prior 
confession  been  shown  before  the  subsequent  confessions  wer6  offered,  it 
would  have  been  incumbent  upon  the  prosecution  to  prove  that  the  lat< 
ter  were  not  the  result  of  illegal  influence.     Id. 

S.  QUESTIOS  WHETHER  SUBSEQUENT  COXTESSION  WAS  RESULT  07  SaUB  INTLC- 

ENCE  Which  Induced  Previous  Confession  b  one  for  the  jury,  under 
proper  instructions  from  the  court,  where  a  subsequent  confession  is 
claimed  to  have  been  subject  to  the  influence  of  an  inducement  held  out 
or  exercised  to  obtain  a  previous  confession.     Id. 

4.  It  is  Province  ot  Ck>URT  to  Determine  whtther  Confession  was  Vol- 
ITNTART  OR  NOT,  in  a  case  free  from  doubt,  before  admitting  or  rejecting 
the  same  as  evidence;  but  if  there  is  a  conflict  of  testimony,  or  room 
for  doubt,  the  court  should  submit  the  question  to  the  jury,  with  instruc- 
tions that  if  they  were  satisfied  that  there  were  inducements,  they 
should  disregard  the  confession.    Id. 

B.  Notes  and  Letters  concernino  Cbikb  are  Admissible  in  Evn>KHca 
without  Formal  Proof  or  Handwrttino,  where  a  witness  identifies 
them,  and  testifies  that  they  were  handed  to  him  by  one  of  the  accused 
to  be  delivered  to  the  other,  but  that  he  gave  them  to  the  sheriff  or  to 
his  wife.    Id. 

9.  EviDSNCS  or  Absence  or  Flioht  or  Persons  wanted  as  witnesses  againsi 
a  person  being  prosecuted  for  crime  is  not  admissible  on  behalf  of  the 
prosecution,  where  the  evidence  already  received  tended  to  show  that 
such  absent  persons  were  qualified  from  actual  knowledge  to  give  evi- 
dance  bearing  more  or  less  directly  upon  the  very  point  in  issue,  and 
were  seemingly  connected  with  the  defendant  in  the  act  charged.  Peo- 
pfe  V.  Sharp,  851. 

7.  EviDENCB  or  Commission  or  Crime  Other  than  One  Charged.  — The 

OMes  on  this  subject  stated  and  analyzed  by  Peckham,  J.     Id. 

8.  Tkbm  "  Accompuce"  Includes  All  Persons  concerned  in  the  commis* 

sion  oi  an  offense,  irrespective  of  the  grade  of  their  guilt  People  r. 
Kraier,  Go. 

9.  Uncorroborated  Evidence  or  TniEr  will  not  iustify  the  conviction  of 

one  indicted  for  receiving  stolen  goods,  knowing  them  to  have  been 
stolen.     Id, 

10.  Whxthsr  Witness  is  Accomplice  u  a  question  of  fact  for  the  jury.    Id. 

11.  Evidence.  —  An  attempt  to  bribe  one  person  should  not  be  allowed  to 
be  proved  on  a  prosecution  for  bribing  another  person  at  a  different  time. 
Pwpk  V.  Sharp,  851. 

12.  Evidence  or  DisposmoN  to  Commit  Crime  ought  not  to  be  admittad 
against  the  defendant  in  a  criminal  ease.     Id. 

18.  Evidence  or  Prior  Crime  can  have  no  legitimat«  place  in  an  investiga* 
tion  as  to  whether  a  subsequent  crime  was  committed  by  the  same  per 
■on.     Id. 

li.  Compounding  Pelont.—  In  all  cases  where  parties  liave  suffered  injury 
from  the  commission  of  a  felony,  they  may  compromise  or  settle  their 
private  damages  in  any  way  they  see  fit,  provided  they  do  not  include 
in  such  settlement  the  stifling  of  the  criminal  proseontion  (or  such 
ielomy.    Johuton  v.  AUent  18a 


926  Index. 

15.  Opinions  of  Medical  Experts  Held  Adbossible,  under  tho  circum- 
stances, in  a  criminal  prosecntion  for  murder,  as  to  how  death  occurred. 
People  V.  Barker,  501. 

16.  TuAT  Party  Alleged  to  have  been  Injured  Made  Complaint  whilb 
Injury  WAS  Recent  may  be  proved  on  the  examination  in  chief  in  a  trial 
for  rape,  but  the  details  and  circumstances  of  the  transaction  cannot  be 
proved  on  such  examination  by  her  declarations.     Parker  v.  State,  3S7. 

17.  Where  Court,  at  Beoinnino  of  Trial  for  Rape,  Orders  All  Wit- 
nesses TO  be  Excluded  from  the  court-room,  but  a  material  and  compe- 
tent witness  for  the  accused,  in  disobedience  of  the  order  of  Ihe  court, 
remains  in  the  court-room  during  the  examination  of  the  witnesses,  the 
court  has  no  right  to  refuse  to  allow  such  witness  to  testify.  A  person  on 
trial  has  the  right  to  prove  the  truth  relating  to  the  accusation  against 
him,  by  the  evidence  of  all  witnesses  who  have  any  knowledge  of  it, 
and  hedoes  not  forfeit  this  right  by  the  misbehavior  of  a  witness.     Id. 

18.  Accused  is  not  in  Jeopardy,  until  a  jury  of  twelve  competent  men 
are  selected  and  sworn.     People  v.  Barker,  601. 

See  Costs;  Extradition;  Jubt  and  Jurors;  Witnesses. 

CUSTOMS. 
See  Factobs. 

DAMAGES. 

1.  Actual  Damages  are  Thosb  Which  Injured  Pabtt  is  Entitled  to 

Recover  fob  Wbonqs  Received  and  injuries  done  when  none  were 
intended.  Where  the  injuries  and  sufferings  were  intended  or  occur 
through  carelessness  or  negligence  amounting  to  a  wrong  so  reckless  and 
wanton  as  to  be  without  palliation  or  excuse,  further  damages,  which 
have  been  variously  termed  "exemplary,"  "punitory,"  "vindictive," 
"compensatory,"  or  "added"  damages,  may  be  given,  agreeably  to 
what  would  be  right  and  just  under  the  circumstances  of  each  particular 
case.     Ross  v.  Leggett,  608. 

2.  Pabty  is  Liable  only  fob  Pboximatb  and  Dibect  Results  of  his 

Acts.  Where  person  shoots  a  dog  in  the  highway,  and  a  woman  stand- 
ing near,  whom  he  does  not  see  at  the  time  he  fires,  is  so  badly  startled 
and  frightened  by  the  report  of  the  gun  as  to  seriously  affect  her  health, 
the  killing  of  the  dog  is  in  no  sense  the  proximate  cause  of  the  injury  to 
the  woman.     Renner  v.  Cavjield,  654. 

8.  Coubt  may  Instruct  Juby  to  Consideb  Age,  Health,  Capacity  to  EIabm 
Money  of  Person  Killed,  and  the  injury  to  his  business  as  disclosed 
by  the  evidence,  in  an  action  brought  for  the  benefit  of  the  widow  and 
next  of  kin,  to  recover  damages  for  injuries  causing  death.  Clapp  v. 
Minneapolis  and  St.  Louis  R.  R.  Co.,  629. 

4.  Interest  may  be  Allowed  on  Amount  of  Damages  awarded  by  the  jury 
for  property  destroyed  by  the  negligence  of  the  defendant,  from  the  time 
of  its  destruction,  where  it  does  not  appear  that  anything  more  than 
actual  compensation  was  awarded,  unless  the  addition  of  interest  would 
increase  the  damages  to  so  great  an  extent  as  to  be  clearly  unjust  when 
the  value  of  the  property  is  taken  into  consideration.  Kendrick  v.  Towle, 
626. 

6.  Verdict  of  Fivb  Thousand  Dollabs  fob  ELiLLiNa  Head  of  Family, 
a  strong,  healthy  man,  in  middle  life,  accustomed  to  earn  good  wages. 


Index.  927 

who  left  a  wife  and  children  surviving  him,  will  not  be  Bet  aside  as  ex« 

ceasive.     BoUnger  v.  St.  Paul  etc.  R.  R.  Co.,  680. 

See  CovBKAUTS,  4;  Interest;  Neoliqence;  Teleoraph;  TRSSPAflS. 

DEBTOR  AND  CREDITOR. 
Creditor's  Right  to  have  his  Debt  Satisfied  by  Sale  of  Debtor's  LA2n> 
NEVER  Existed  in  this  country  or  in  England,  except  as  given  by  statutei, 
Rigga  v.  Sterling,  554. 

See  Accord  and  Satisfaction;  Release. 

DEEDS. 

1.  Deliysbt.  — Deed  of  real  estate,  acknowledged  by  grantor,  containing  the 

words  "signed,  sealed,  and  delivered  in  the  presence  of  S.  Michaels,** 
placed  in  an  envelope  in  grantor's  table-drawer,  with  directions  as  to 
recording  indorsed  on  envelope,  is  neither  delivered  to  the  intended 
grantee  nor  to  any  one  else,  and  it  conveys  no  title.  Stone  v.  French, 
237. 

2.  Intention  to  Make  Fctitre  Deltvert  of  Deed  and  C!onvetanci  of 

Land  at  Death  of  grantor  is  not  a  delivery  of  such  deed,  and  passes  no 
interest  in  the  land.     Id. 

5.  Deed  neither  Delivered  nor  Recorded  by  grantor  during  his  lifetime 

is  void.     Id. 

4.  Erboneods  Mention  of  Incident  in  History  of  Title  to  Piech  of 

Land  is  without  Force  as  against  the  mention  of  metes,  bound*, 
courses,  distances,  and  visible  monuments,  when  the  question  is,  whether 
the  deed  is  sufficient,  as  to  form,  to  convey  the  land  intended.  Sherwood 
V.  Whiting,  116. 

6.  Courts  should  Uphold  rathxb  than  Destroy  Deeds;  and  in  the  die* 

charge  of  their  duty  in  this  respect,  errors  in  description  are  frequently 
declared  to  be  of  no  effect.  Id. 
H.  Deed — Construction  and  Effect. — The  property  intended  to  be  con* 
veyed  was  described  as  follows:  "All  the  real  estate  of  0.  S.,  deceaaed, 
which  was  distributed  to  F.  S.  in  the  distribution  of  said  estate,  and 
afterwards  conveyed  to  me  by  said  F.  S."*  In  point  of  fact,  F.  S.  had 
conveyed  to  the  grantor  before  the  distribution,  and  not  after,  and  for 
the  purpose  of  concealing  the  property  from  his  creditors;  but  his  deed 
fully  described  the  land  conveyed.  In  a  suit  to  compel  the  heirs  of  the 
grantor  to  execute  a  corrected  deed,  held,  that  it  needed  no  correction; 
if  legally  sufficient  in  form,  such  deed  conveys  a  title  which  is  unaasail- 
able;  and  for  the  purpose  of  determining  its  sufficiency  in  form,  the  only 
tests  to  be  applied  are  those  which  would  be  applied  to  a  deed  executed 
upon  a  valuable  consideration.     Id. 

7.  Quitclaim  Deed,  or  conveyance  of  all  the  grantor's  right,  title,  and  inter- 

est, vests  in  the  purchaser  only  what  the  grantor  himself  could  claim. 
The  only  exceptions  to  this  rule  are  those  founded  upon  the  recording 
acts,  or  upon  sales  made  under  execution.     A  Uiaon  v.  Thomaa,  89. 

8.  Quitclaim  Dkxd  to  Land  Conveys  All  Grantor's  lNTERE.<rr  and  estate 

in  such  land,  nnles*  otherwise  specified  in  the  deed  itself.  Johnson  r. 
Williams,  243. 

5.  Covenants  of  Former  Oiuntors  Which  Run  wrrn  Land  Pass  to 

Grantee  under  Quitclaim  Deed. — Grantee  in  a  quitclaim  deed  ob- 
tains the  right  to  any  interest  that  may  at  any  time  come  to  grantees  of 
hi*  former  grantors  by  virtue  of  oovenanta  that  ran  with  the  land,    id. 


928  Iin)EX. 

10.  Grantor  Giyxno  QtnrcLAiM  Deed  may  subsequently  acquire  ajid  asseri 
against  his  grantee  adverse  title  to  the  same  land.     Id. 

11.  Bona  Fide  Purchaser. — Grantee  holding  only  a  quitclaim  deed  from 
his  immediate  grantor  is  not  a  bonaJicU  purchaser.    Id. 

12.  Grantee  under  Quitclaim  Deed  Takes  with  Notice  of  Doubtful 
Title,  and  is  put  upon  inquiry  as  to  such  title;  and  he  is  presumed  to 
have  a  knowledge  of  all  outstanding  equities  and  interests  which  he  could 
have  obtained  with  a  reasonable  degree  of  diligence..    Id. 

13.  Grantor  is  Competent  Witness  against  his  Grantee  to  prove  that  the 
conveyance  under  which  he  had  acquired  an  apparent  title  was  given  to 
secure  a  debt,  and  therefore  constituted  an  equitable  mortgage.  Knapp 
V.  Bailey,  295. 

14.  Conveyance  may  in  Equity  be  Controlled  by  Oral  Evidence  showing 
that  it  was  given  and  received  merely  as  security  for  a  debt.     Id. 

15.  Recording  Void  Deed  Gives  It  No  Validity,  and  a  bonajide  purchaser, 
under  such  void  deed,  acquires  no  title,  and  can  convey  none.  Stone  v. 
Frendi,  237. 

16.  Title  to  Timber  Excepted  in  Deed  Remains  in  Grantor,  who  has  im- 
plied power  to  enter,  fell,  and  take  it  away;  and  is  of  the  same  binding 
force  and  effect  as  if  the  whole  estate  had  been  granted,  and  then  the 
grantee  had  reconveyed  the  timber  to  the  grantor,  in  which  case  the 
grantor's  right  to  enter  upon  the  land,  and  cut  and  remove  the  timber 
at  pleasure,  would  have  passed  as  an  incident  of  the  grant,  and  could 
not  have  been  revoked,  unless  coupled  with  a  limitation  as  to  the  time 
of  enjoyment.      Wait  v.  Baldimn,  551. 

17.  Grantor's  Right  to  Enter  and  Remove  Timber  under  Exception 
Contained  in  Deed,  without  limitation  as  to  the  time  of  removal,  does 
not  rest  upon  the  notion  of  a  license  from  the  grantee,  but  as  being  con- 
nected with  the  exception  as  an  incident  to  its  enjoyment,  and  is  an 
interest  in  the  land  to  that  extent;  and  subsequent  purchasers  taking 
the  title  with  full  notice  of  the  right  are  entitled  to  no  protection  against 
it  as  innocent  purchasers.     Id. 

See  Evidence,  4,  5;  Homestead,  23;  Mortgages,  7-9;  Registration. 

DURESS. 

1.  Defense  of  Duress  of  Principal  cannot  be  made  by  surety  against  whom 

no  duress  was  employed.     Oak  v.  DusUriy  281. 

2.  Duress  by  Husband  is  No  Defense  in  Action  by  Paybs  against  Wife 

on  a  promissory  note  executed  by  her,  if  the  payee  took  the  note  in  igno- 
rance thereof.    Fairbanks  ▼.  Snow,  446. 

EJECTMENT. 

1.  Return  of  Sheriff  on  Writ  of  Restitution  is  Prima  Facie  Evidencb 

only  of  the  fact  therein  stated,  in  California.     Cobum  v.  Ooodall,  75. 

2.  Judgment  in  Ejectment  does  not  Preclude  Plaintiff  from  Maintain- 

ing a  subsequent  action  to  recover  damages  for  withholding  possession 
of  the  premises,  where  the  record  in  the  former  suit  shows  that  all  claims 
for  such  damages  were  withdrawn.     Id. 
8.  Judgment  in  Ejectment  is  not  Conclusive  as  to  Time  of  Ouster,  when 
all  claims  for  mesne  profits  and  damages  were  withdrawn.    Id. 
See  Counterclaim;  Covenants,  3^^ 


Index.  929 

EMBLEMENTS. 
See  Landlord  and  Tenant,  7,  8. 

EMINENT  DOMAIN. 
EmNKfT  Domain.  — Order  of  judge  putting  plaintiff  in  poeseaaion  of  lands 
pending  proceedings  for  their  condemnation  is  void.   Cobum  v.  OoodaU,  7S. 

EQUITY. 
That  Case  la  Novel,  and  not  clearly  within  the  limits  of  any  adjudged 
case,  does  not  of  itself  warrant  the  denial  of  relief  to  a  complainant  ia 
equity.     Piper  v.  Hoard,  785. 

See  Estoppel;  Jxtbisdiction;  Jury  and  Jitrors;  Partition. 

ESTATES. 

ESTATX  MAT  BE  MaDB  TO  DEPEND  UPON  OnB  OF  Two  OB  MoRB  AlTBRNA< 

TIVB  Ck)NTiNGENciES,  but  the  general  rule  is,  that  when  an  estate  de- 
pends upon  a  double  contingency,  both  must  concur.    Phelps  v.  Bates,  92. 

ESTATES  FOR  LIFE. 

1.  Purchase  of  Encumbrance  upon,  or  of  Advbrse  Title  to.  Estate  bt 

Tenant  for  Life  in  possession  will  be  regarded  as  having  boen  made 
for  the  joint  benefit  of  himself  and  the  reversioner  or  remainderman. 
The  law  will  not  permit  him  to  hold  it  for  his  own  exclusive  benefit,  if 
the  reversioner  or  remainderman  will  contribute  his  share  of  the  sum 
paid.      WJutney  v.  Salter,  656. 

2.  If  Life  Tenant  of  Renewable  Leasehold  Estate  Renews  Lease,  the 

law  will  not  permit  him  to  do  so  for  his  own  exclusive  use,  but  will 
make  him  a  trustee  for  the  reversioner  or  remainderman.  But  if  the 
life  tenant  pay  out  money  that  he  was  not  required  to  pay,  or  more 
than  his  proportionate  share,  he  becomes,  to  that  extent,  a  creditor  of 
the  estate,  and  will  be  subrogated  to  the  rights  of  the  persons  whose 
claims  he  has  paid  off.  He  and  those  claiming  under  him  occupy  a  posi- 
tion  analogous  to  that  of  a  mortgagee  in  possession  after  condition 
broken,  and  cannot  be  ejected  until  all  sums  due  him  or  them  from  the 
estate  have  been  repaid.     Id. 

ESTATES  OF  DECEDENTS. 

1.  Pebbonal  EIstatb  of  Testator  is  Primarily  Chabobablb  with  the  pay- 

ment  of  his  debts  and  legacies,  and  with  the  payment  of  liens  on  his  real 
estate.     Cooch  v.  Coocfi,  101. 

2.  Old  Rule  that  Personal  Propertt  must  First  be  Exhausted  in  the 

payment  of  testator's  debts  is  not  changed  by  our  system  of  settlement 
of  estates,  under  which  all  testator's  property,  real  as  well  as  personal, 
is  responsible  for  such  payment.     Id. 

8.  Real  Estate  is  never  Charged  wrm  Payment  of  Debts  and  Lboa- 
ciEs  while  there  is  personal  property  remaining,  unless  such  an  inten- 
tion, together  with  a  direction  that  the  personalty  be  exempt,  is  expressly 
declared,  or  may  be  fairly  inferred  from  the  language  of  the  will     Id 

4.  Specific  Bequest  of  Personal  Property  is  subject  to  payment  of  tes- 
tator's debts,  unless  his  realty  is  charged  with  their  payment     Id. 
Am.  8t.  Rep.,  Vol.  I. -69 


930  Index. 

6.  L20ATEK  WHOSE  Leoact  13  Specifio  13  Entttces  to  Contribution  trom 
Holders  of  Other  Specitio  Legacies,  if  hia  legacy  is  appropriated  to 
satisfy  the  lawful  claims  of  the  testator's  widow,  who  has  waived  the 
provisions  of  the  will  in  her  favor.     Tomlinson  v.  Bury,  464. 

6-  Law  of  Situs  Prevails  over  Law  of  Domicile  as  to  the  order  of  pay- 
ment of  debts  of  deceased,  when  decedent's  estate  is  insolvent.  Der- 
inger  v.  Deringtr,  150. 

ESTOPPEL. 

1.  To  Greats  Equitable  Estoppel,  the  person  sought  to  be  estopped  must 

do  some  act  or  make  some  admission  to  influence  the  conduct  of  an- 
other,  which  act  or  admission  is  inconsistent  with  the  claim  he  proposes 
now  to  make;  and  the  other  party  must  have  acted  on  the  strength  of 
such  act  or  admission.     New  York  Ruliber  Co.  v.  Rothery,  822. 

2.  Silence  does  not  Create  Estoppel,  unless  there  was  a  duty  to  speak. 

Id. 

3.  Estoppel.  —  Riparian  proprietor,  seeing  proprietors  on  the  opposite  side 

of  the  stream  building  a  mill-race  to  be  used  for  the  purpose  of  taking 
water  out  of  the  stream  to  supply  a  shop  or  factory,  and  not  to  be  re- 
turned to  the  stream  until  after  it  passes  his  land,  is  not,  by  his  failure 
to  object  to  such  mill-race  during  its  construction,  estopped  from  sub- 
sequently objecting  thereto,  and  maintaining  an  action  for  damages  oc- 
casioned thereby.     Id. 

A.  Estoppel. — Person  representing  that  certain  property  belonged  to  one 
then  negotiating  a  marriage  is  estopped  from  denying  the  truth  of  such 
representations,  when  to  do  so  would  disappoint  expectations  raised 
thereby.     Pi'per  v.  Hoard,  789. 

6.  Issue  of  Marriage  Brought  about  by  Falsehood  and  Fraud  of  de- 
fendant may  call  him  to  account  for  such  fraud,  and  bind  him  to  mak« 
good  the  thing  in  the  manner  in  which  he  represented  it,  so  that  it  shall 
be  as  he  represented  it  to  be.     Id. 

EVIDENCE. 

1.  Account-book,  Kept  bt  One  Unable  to  Write,  in  Which  only  En- 

tries ARE  Straight  Mares  to  indicate  the  number  of  loads  of  sand 
delivered,  is  admissible  in  evidence,  when  supported  by  oath;  and  at  all 
events,  such  person  has  the  right  to  use  the  book  as  a  memorandum  to 
refresh  and  aid  his  memory.     Miller  v.  Skay,  449. 

2.  Account-book  is  Book  of  Original  Entries,  when  the  marks  therein  are 

transferred  the  same  day  from  marks  on  a  cart  made  by  a  servant  who 
delivered  the  loads.     Id. 

3.  Servant  is  Competent  and  Necessary  Witness  to  Support  Charges 

AND  Prove  Delivery,  when  goods  are  delivered  by  a  servant,  and  his 
entries  or  marks  are  transferred  to  the  master's  account-book,  which  is 
offered  in  evidence.     Id. 

4.  Declarations  in  Disparagement  of  Title,  made  by  the  grantor  while 

owner  of  the  land,  are  admissible  in  evidence  in  favor  of  one  claiming 
adversely  to  the  grantee,  and  cannot  be  impeached  by  later  and  contra- 
dictory statements  made  by  the  grantor,  after  he  parted  with  the  title. 
Royal  V.  Chandler,  305. 
6.  Acts  and  Declarations  of  Grantor  Subsequent  to  his  Deed  cannot 
be  received  in  evidence  to  invalidate  it.     Dudley  v.  Hurst,  368 


Index.  931 

0.  Conclusion  or  Supposition  of  Witness  is  not  Evidencb  against  another 

person.     People  v.  Sharp,  851. 

7.  Admissions  of  Copartner  and  of  Joint  Contractor  havb  been  Held 
Admissible  in  Evidence  to  bind,  not  only  themselves,  but  their  co- 
defendants;  but  whether  the  admissions  of  a  surety  are  proper  evidence 
to  bind  a  co-surety  is  a  question  undetermined  in  the  particular  case. 
Mathews  v.  Phelps,  581. 

See  Alteration  of  Instruments;  Common  Carriers;  Contracts,  2,  3; 
Counterclaim;  Criminal  Law;  New  Trl^l;  Pleading  and  Practicb; 
Witnesses. 

EXECUTIONS. 

1.  Judgment  is  not  Subject  to  Levy  and  Sale  under  ExEocnoii.   Do* 

V.  Dougherty,  48. 

2.  Sheriff's  Advertisement  for  Sale  of  Lands  need  only  state  the  day  on 

which  the  sale  will  take  place;  it  need  not  state  the  hours  of  that  day 
between  which  it  will  be  sold,  as  the  law  fixes  that  Etans  v.  Bobberson, 
701. 

3.  Presumption  will  be  Indulged  that  Sheriff's  Notice  of  Sale  of  land 

under  execution  was  posted  at  the  front  door  of  the  court-bouse,  as  re- 
quired  by  law,  when  there  is  nothing  to  negative  such  presumption.    Id, 

4.  Every  Reasonable  Presumption  will  be  Indulged  in  favor  of  sostain- 

ing  the  ministerial  acts  of  officers  making  judicial  sales.     Id. 

5.  Failure  of  Sheriff  to  Post  Notice  of  Sale  of  land  under  execution  in 

front  of  the  court-house,  as  required  by  law,  is  but  an  irregularity,  which 
cannot  affect  the  title  of  an  innocent  purchaser  without  notice,  in  a  col- 
lateral proceeding,  though  it  might  be  ground  for  setting  aside  the  sale 
in  a  direct  proceeding  between  the  interested  parties.     Id. 

6.  Sheriff's  Deed  Regular  in  Form  and  properly  acknowledged  is  admissi- 

ble in  evidence  in  support  of  the  recitals  therein  contained.     Id. 

7.  Action  at  Law  by  Execution  Purchaser  to  Test  Validity  of  his  Titlb 

is  not  Necessarily  Barred  because  the  judgment  creditor  has  lost  hia 
equitable  remedy  to  set  aside  the  fraudulent  conveyance  by  lapse  of  time. 
Jackson  v.  Holhrook,  684. 

See  Exemptions;  Sheriffs. 

execltors  and  administrators. 

1.  Foreign  Administrator  Acts  in  this  state  by  virtue  of  the  power  originally 

granted  to  him;  and  the  laws  of  this  state  recognize  him  as  such  upon 
the  mere  production  of  his  duly  authenticated  commission,  and  thare- 
upoa  concede  him  the  {K>wcr8  of  administrator  appointed  by  the  court* 
here.     Deriiujer  v.  Derinyer,  150. 

2.  Payment  to  Foreign  Administrator  is  good,  althoagh  such  administrator 

has  neither  given  security  nor  recorded  his  letters  of  administration.    Id. 

3.  Corporation  cannot  Take  out  Lxrnats  or  AoMiirnnuTiON  under  the 

laws  of  this  state.     Id. 

4.  CoKroRATioN  may  Act  as  Adhinistratoh  when  the  law  of  the  state  does 

not  require  the  administrator  to  take  an  oath,  or  to  do  any  other  act  which 
a  corporation  is  incompetent  to  perform.     Id. 
0.  Foreign  Corporation   having  Acted  as  Adminiotkatob  in  the  state 
where  it  was  created  may  act  as  such  in  this  state,  and  may  bring  mit 

here.     Id. 

See  Corporations;  JuDOMXirn. 


932  Index. 

EXEMPTIONS. 

L  In  Plkadinq  Exemption  under  Statute,  Facts  Which  Show  the  prop- 
erty  to  be  exempt  shonid  be  clearly  set  forth;  but  an  objection  on  that 
groond  after  all  the  proof  has  been  -admitted  comes  too  late,  and  an 
amendment  shonid  be  permitted  to  remedy  the  defect.  McCoy  v.  Bren- 
nan,  589. 

2.  Each  Member  of  Firm  against  Which  Execution  is  Levied  mat  Claim 
Statutory  Exemption  from  snch  process,  and  the  right  of  a  partner  to 
make  snch  claim  is  not  affected  by  the  fact  that  he  has  drawn  more  than 
hia  share  out  of  the  firm  assets.  This  question  can  only  be  reached  by 
proceedings  in  equity  upon  an  accounting  and  winding  up  of  the  part- 
nership.    Id. 

8w  It  IS  not  Necessary  that  Partner  should  be  Activb  Member  of  Firm 
TO  Entitle  him  to  his  statutory  exemption.  A  married  woman  who  is 
a  member  of  a  firm,  though  residing  with  her  husband  a  long  distance 
from  the  place  of  business  of  the  firm,  and  mainly  occupied  in  house- 
keeping, is  nevertheless  entitled  to  claim  her  statutory  exemption  in  the 
firm  property.     Id. 

4.  Statutory  Right  of  Exemption  is  Individual  Bight,  which  one  partner 
may  enforce  in  a  separafe  suit  as  an  individual.    Id. 

6.  Creditors  cannot  Rely  upon  Any  Question  of  Fraud  in  dealing  with 
exempt  property.     Freehling  v.  BremaJian,  617. 

6.  Under  Exemption  Laws,  Husband  must  be  Conclusively  Presumed  to 
Reside  with  his  Family,  where  they  occupy  the  old  home  with  hia 
consent,  and  there  has  been  no  separation  between  the  husband  and  wife; 
and  he  cannot,  by  his  voluntary  absence,  deprive  his  family  of  their  rights 
in  the  enjoyment  of  the  household  property,  nor  will  it  cease  to  be  ex- 
empt while  so  held.     Id. 

See  Homesteads;  Sheriffs. 

EXPERTS. 
See  Common  Carriers,  10. 

EXTRADITION. 

1.  Fugitives  from  Justice  —  Constitutionality  of  State  Law.  — The  state 

statute  of  the  17th  of  February,  1881,  authorizing  arrest  and  detention 
of  fugitives  from  justice,  does  not  conflict  with  section  2,  article  4,  of 
the  constitution  of  the  United  States,  or  with  sections  6278  and  5279  of 
the  Revised  Statutes  thereof.    Kurtz  v.  State,  173. 

2.  Fugitive  from  Justice.  —  Either  the  original  affidavit,  or  a  copy  thereof 

duly  certified  as  authentic  by  the  governor  of  the  state  whence  the  fugi- 
tive has  fled,  b  sufficient  to  authorize  the  action  of  the  governor  of  the 
state  where  the  fugitive  is  found.  Alleged  fugitive  from  justice  /cannot 
impeach  the  validity  of  the  affidavit  upon  which  the  requisition  is  based, 
if  it  distinctly  charge  the  commission  of  an  offense.     Id. 

3.  Fugitive  from  Justice. — Governor  of  the  requesting  state  is  the  only 

judge  of  the  authenticity  of  the  affidavit.     Id. 

4.  Certificate,  that  Affidavit  trpoN  Which  Requisition  for  fugitive  from 

justice  is  founded  ' '  is  duly  authenticated  according  to  the  laws  of  said 
state, "  is  sufficient.     Id. 
B.  "Magistrate."  —  This  word  in  section  5278,  Revised  Statutes,  relating 
to  fugitives  from  justice,  includes  an  assistant  police  magistrate  of  a 
titj.    Id. 


Index.  933 

6.  Re3  Adjttdicata  does  not  Apply  to  Josomsnts  oq  habeas  corpia  in  cases 

of  extradition.     Id. 

7.  I.v  Habeas  Corpus  Proceedings  is  Extradition  Cases,  the  merits  of  th« 

case  cannot  be  considered.  The  only  subjects  of  inquiry  are  the  suf- 
ficiency of  the  papers  and  the  identity  of  tlae  prisoner.     Id. 

FACTORS. 

1.  FaCtob  is  mot  Responsible  to  his  Principal  for  Ditferences  nr 

Grades  of  grain,  in  the  market  to  which  it  is  consigned,  from  thoM 
established  at  other  places,  in  the  absence  of  special  instructions.  Th« 
principal  assumes  the  risk  of  that  when  he  selects  his  market.  Davit  v. 
Kobe,  663. 

2.  Factor  Who  has  Made  Large  Advances  to  his  Principal  upon  prop- 

erty consigned  to  him  for  sale,  which  property  has  become  doubtful 
security  for  his  reimbursement,  and  who  has  repeatedly  demanded  re- 
payment of  his  advances,  or  security  therefor,  without  compliance  by 
the  principal,  may,  after  reasonable  notice  to  his  principal,  with  reason- 
able discretion  and  in  good  faith,  sell  the  property,  although  directed  by 
the  principal  to  hold  it  longer.     Id. 

8.  Factor  to  Whom  Wheat  is  Consigned  for  Storage  in  Elevator,  and 

for  sale,  may  store  it  in  a  mass  in  a  bin  with  other  wheat  of  the  sam* 
grade  and  quality,  in  the  absence  of  instructions  from  the  consignor  to 
the  contrary.  Id. 
4.  Courts  Take  Jxtdicial  Notice  that  It  is  Customary  to  Stork  Wheat 
in  Mass  with  other  wheat  of  the  same  grade  and  quality  in  general  com* 
mercial  elevators.     Id. 

FALSE  IMPRISONMENT. 

1.  Officers  Who  Make  Wrongful  Arrest  are  Answerable  JonnxT,  ia 

an  action  for  false  imprisonment,  with  those  who  cause  and  take  part 
in  a  subsequent  detention  under  it;  although,  if  the  arrest  bad  been 
lawful,  they  would  not  bo  liable  for  a  subsequent  wrongful  imprison- 
ment in  which  they  took  no  part.     Baih  v.  Mttcalf,  45o. 

2.  Officers  Who  Cause  and  Take  Part  in  Prolonging  Imprisonment  o» 

One  Arrested  without  Warrant,  beyond  the  doors  of  the  lock-np, 
for  the  purpose  of  sending  him  out  of  town,  after  the  marshal  has  reason 
to  believe  him  innocent,  and  has  made  up  hia  mind  to  release  him,  ar* 
liable  in  an  action  for  false  imprisonment,  even  if  the  arrest  had  been 
lawful,  and  a  fortiori  if  tho  arrest  was  unlawful.  Id. 
8.  Verdict  against  All  Officers  Jointly,  in  Action  for  False  Imprison- 
ment, IS  Proper,  but  only  for  the  imprisonment  l>ctwecn  tho  lock-up 
and  the  railroad  station,  and  on  the  ground  that  the  nrrost  was  wrongful* 
where  a  person  was  arrested,  without  a  warrant,  on  a  charge  of  felony, 
by  two  police-officers  of  a  city,  and  taken  to  the  lock-up,  and  afterwards 
the  city  marshal,  having  reason  to  believe  that  the  prisoner  was  inno- 
cent, and  having  made  up  his  mind  to  release  him,  sent  him,  the  assist- 
ant marshal  taking  part  in  such  act,  from  the  lock-up  to  the  railroad 
station,  in  the  custody  of  another  officer.     Id. 

FIXTURES. 
1.  Evkbtthinq  Regarded  by  Law  as  Fixture,  as  BrrwrncN  Mobtoaoob  axd 
Mobtoaokx,  is  sufficiently  covereil  by  a  mortgage  o(  a  farm,  "together 


934  Lndex. 

with  the  bnildlngs  and  improvements  thereupon,  and  the  rights,  road* 
ways,  waters,  privileges,  appurtenances,  and  advantages  thereto  belong- 
ing or  in  any  wise  appertaining. "     Dudley  v.  Hiirat,  368. 

2.  Machinery  Used  in  Canning  Business  is  Fixture,  and,  as  between  the 
mortgagor  and  the  mortgagee  of  the  laud  npon  which  it  is  erected,  will 
pass  to  the  latter,  where  parts  of  it  are  attached  to  the  soil  and  the  other 
parts  are  necessary  to  the  use  of  the  parts  so  attached.    Id. 

8.  Where  Principal  Part  of  Machinery  Becomes  Fixture  by  Actual  An- 
KEXATiON  to  the  soil,  such  part  of  it  aa  may  not  be  so  physically  annexed, 
but  which,  if  removed,  would  leave  the  principal  part  unfit  for  use,  and 
would  not  of  itself  and  standing  alone  be  well  adapted  to  general  use 
elaewhere,  is  considered  constructively  annexed.     Id. 

FRAUD. 

1.  Illegal  Acts  Prejudicial  to  Rights  op  Others  are  frauds  on  those 

rights,  although  the  parties  are  innocent  of  any  intention  to  commit  a 
fraud.  If  the  act  is  in  efifect  a  fraud  upon  the  creditor,  the  motives  of 
the  parties  are  of  no  consequence.    Logan  v.  Logan,  212. 

2.  Fraud  is  not  Mitigated  by  showing  that  it  consisted  of  fraudulent  repre- 

sentations, made  to  induce  a  woman  to  marry  from  mercenary  motives. 
Piper  v.  Hoard,  789. 

FRAUDULENT  CONVEYANCES. 

1.  Mortgage  of  Stock  of  Goods  in  Trade,  under  which  the  mortgagor  ia 

permitted  by  the  mortgagee  to  sell  the  goods  at  hia  discretion  in  the 
usual  course  of  his  business,  is  essentially  fraudulent  as  to  creditors  of 
the  mortgagor,  even  though  the  agreement  permitting  such  sales  is  not 
shown  upon  the  face  of  the  mortgage,  but  is  proved  aliunde.  Logan  v. 
Logan,  212. 

2.  Fact  that  Conveyance,  under  Which  Title  Appears  to  be  in  Third 

Person,  is  Fraudulent,  and  of  no  effect,  may  be  established  by  a  suit 
in  equity,  or  it  may  be  proved  in  an  action  at  law  by  any  competent 
evidence.     Jackson  v.  Holbrook,  683. 

8.  Judgment  Creditor  —  Fraudulent  Conveyance  by  Debtor. — A  judg- 
ment creditor  has  the  right  to  proceed  to  an  execution  sale  of  property 
which  the  debtor  had  fraudulently  mortgaged,  but  such  right  does  not 
prevent  his  resorting  to  equity  to  cancel  the  fraudulent  instrument. 
Logan  v.  Logan,  212. 

4.  When  Creditor  Seeks  Aid  of  Court  of  Equity  for  the  satisfaction  of  a 
judgment  out  of  the  property  of  his  debtor,  the  title  to  which  property 
has  been  in  the  debtor,  but  has  been  fraudulently  transferred,  it  is  suffi- 
cient for  the  creditor  to  show  a  judgment  at  law  and  execution  to  entitle 
him  to  resort  to  equity  to  vacate  such  fraudulent  conveyance.     Id, 

6.  Creditor  has  No  Right  of  Action  against  the  parties  procuring  the 
fraudulent  conveyance  to  be  executed,  for  their  conduct  in  so  doing,  but 
be  can  successfully  attack  the  conveyance  for  fraud  apparent  upon  it,  by 
which  his  rights  are  affected.    Id. 

FUGITIVES  FROM  JUSTICB. 
See  Extradition. 


Index.  935 

GAMING. 

1.  MoNEr  Loaned  with  Intent  ox  Part  of  Lender  that  it  shall  be  used 

for  gambling  purposes  by  the  borrower  cannot  be  recovered  if  so  used. 
Tyler  v.  Carlisle,  301. 

2.  MoNEr  Loaned  for  Gambuno  Pcrposes,  but  not  so  used  by  the  bor* 

rower,  may  be  recovered  of  him  by  the  lender.     Id. 

3.  Sale  of  Goods  to  be  Delivered  in  Future  is  valid,  though  there  is  an 

option  as  to  the  time  of  delivery,  and  the  seller  has  no  means  of  getting 
them  but  to  go  into  the  market  and  buy.  But  if,  under  guise  of  such 
contract,  valid  on  its  face,  the  real  purpose  and  intention  is  merely  to 
speculate  in  the  rise  or  fall  of  prices,  and  the  goods  are  not  to  be  deliv- 
ered, but  the  difference  between  the  contract  and  the  market  price  only 
paid,  the  transaction  is  a  wager,  and  the  contract  void.  Cratqfard  r. 
Spencer,  745. 

ii  To  Render  Contract  for  Sale  of  Goods  to  be  delivered  in  future  void 
as  a  wagering  contract,  it  is  not  enough  that  one  party  only  intended  a 
speculation  in  prices;  it  must  be  shown  that  both  parties  did  not  intend 
a  delivery  of  the  subject-matter,  but  contemplated  and  intended  only  a 
settlement  of  the  difference  between  the  contract  and  the  market  price. 
Id. 

5.  Broker  mat  Neootlate  Contract  for  Sale  of  goods  to  be  delivered  ia 
future,  without  being  privy  to  an  illegal  intent  of  the  principads,  render- 
ing  it  void;  and  being  innocent,  he  has  a  meritorious  ground  for  the  re* 
covery  of  compensation  for  services  and  advances.     Id. 

8.  When  Broker  is  Privy  to  Unlawful  Design  of  Parties  to  a  contract 
for  the  sale  of  goods,  to  be  delivered  in  future,  and  brings  them  together 
for  the  purpose  of  entering  into  the  illegal  agreement,  he  is  particepa 
eriminis,  and  cannot  recover  for  services  rendered  or  losses  incurred  by 
himself  on  behalf  of  either  in  forwarding  the  transaction.     Id. 

7.  Wagering  Contract  for  Future  Sales  is  not  within  the  provisions  of 

the  Missouri  criminad  statutes,  making  gambling  notes  void  in  the  hands 
of  the  holder;  therefore  a  note  based  on  such  contract  is  not  void  in  the 
hands  of  an  indorsee  before  maturity,  simply  because  based  upon  such 
consideration.     Id. 

8.  Note  Based  upon  Illegal  Wagering  Contract  assigned  as  collateral, 

with  an  extension  of  time  for  the  payment  of  the  principal  debt,  oonsti« 
tvtes  the  assignee  a  holder  for  value  for  a  new  consideration,  and  freed 
from  the  equities  existing  between  the  original  parties  of  which  he  has 
no  notice,  the  collateral  not  being  due  when  assigned,  and  he  can  enforce 
his  secnrity  to  the  extent  of  the  debt  due  him  from  his  assignor.     Id. 

GROWINO  TREES. 
See  Duds,  15,  IC;  TRXSFAaa,  2-4. 

GUARANTY. 
[h  CosmRxmiQ  ComKAcr  of  Guara.htt,  Gknkral  Ruli  Aruiko  non 
Iju~eiOATi05  OF  Lamouaoi  Used  is,  that  when  the  amoonk  of  the  lia- 
bility is  limited,  and  the  time  is  not,  the  contract  should  be  ooostraed 
M  a  continoini  psanuity.    Maihewa  v.  Phelp$,  681. 

HABEAS  CORPUS. 
See  Extradition,  6.  7. 


936  Index. 

HIGHWAYS. 

1.  Pbimabt  Object  of  Public  Streets  and  Highways  is  to  famish  a  pas- 

sage-way for  travelers  in  vehicles  or  on  foot;  and  while  they  may  be  put 
to  numerous  other  uses,  such  uses  must  be  enjoyed  in  subordination  tO' 
this  primary  object.    People  v.  Squire,  893. 

2.  Power  to  Control  Public  Streets,  and  to  Provide  tor  Proper  Ad- 

justment of  conflicting  rights  and  interests  therein,  is  a  police  power, 
the  exercise  of  which  may  be  delegated  to  municipal  corporations.    Id. 

8.  Obstruction  to  Streets  is  Ordinarily  Nuisance,  if  it  interferes  with 
their  use  by  the  public  for  travel  and  transportation.  Abutting  owner 
to  street  may  temporarily  encroach  thereon  by  the  deposit  of  building 
materials,  if  engaged  in  building.  A  tradesman  may  convey  goods  in  the 
street  to  or  from  his  adjoining  store.  A  coach  or  omnibus  may  stop  in 
the  street  to  take  up  or  set  down  passengers;  and  the  use  of  the  street- 
for  public  travel  may  be  interfered  with  in  a  variety  of  other  ways  with- 
out creating  a  nuisance.    Callanan  v.  Gilnian,  831. 

A,  Obstruction  op  Streets  can  only  be  Justified  by  Necessity,  and  even, 
then  it  must  be  reasonable,  with  reference  to  the  rights  of  the  public,, 
who  have  interests  in  the  streets,  which  may  not  be  sacrificed  or  disre- 
garded.    Id. 

6.  Whether  Obstruction  in  Street  is  Necessabt  and  Reasonable  ia  gen- 
erally a  question  of  fact.    Id. 

6.  Appropriation  of  Street  to  Private  Use  by  one  doing  business  thereon 

will  not  be  permitted.  The  maintenance  of  a  bridge  across  a  sidewalk 
for  hours  daring  each  business  day,  over  which  goods  are  conveyed  to 
and  from  a  store,  is  a  public  nuisance.    Id. 

7.  To  Recover  for  Public  Nuisance,  plaintiff  must  allege  and  prove  that  h& 

has  sustained' special  damage,  different  from  that  sustained  by  the  gen- 
eral public.  Such  special  damage  is  sufficiently  shown  when  it  appears 
that  the  plaintiff  has  a  store  adjacent  to  the  alleged  nuisance,  and  that 
the  nuisance  prevents  plaintiff,  his  employees  and  patrons,  from  reach- 
ing such  store  by  passing  along  the  sidewalk  in  front  thereof.     Id. 

8.  Obstruction  of  Sidewalk  cannot  be  Justified  by  showing  that  defend- 

ant allowed  pedestrians  to  pass  around  or  through  his  store,  or  over  his 
elevated  stoop,  between  moving  barrels  and  packages.     Id. 

9.  Judoment  Enjoininq  Obstruction  of  Sidewalk  should  not  prevent  th» 

defendant  from  making  any  use  whatever  of  such  obstruction,  but 
should  be  limited  to  restraining  him  from  "unnecessarily  or  unreason- 
ably obstructing  such  sidewalk,  or  from  unnecessarily  or  unreasonably 
hindering  or  preventing  plaintiff,  or  his  employees,  servants,  and  cus- 
tomers, from  having  the  convenient  use  of  and  passage  along  the  side- 
walk."   Id.  » 

10.  Grantee,  under  Power  of  Sale  in  Mortgage,  is  Liable  for  Injuries 
Suffered  by  Person  Walking  on  Sidewalk  in  Front  of  Premises, 
by  reason  of  a  defect  in  the  cover  of  a  coal-hole,  existing,  and  open  and 
visible,  at  the  time  of  the  sale,  where  the  owner  of  the  equity  of  redemp- 
tion released  any  title  he  might  have  to  the  grantee,  and  remained  in 
possession  as  a  tenant  at  will,  and  was  in  occupation  at  the  time  of  the 
injury.     Dalay  v.  Savage,  429. 

11.  Sidewalk.  — One  who  maintains  a  hole  in  a  sidewalk  in  front  of  his  prem- 
ises in  a  populous  city,  over  which  is  a  movable  trap-door,  is  answerable 
to  a  person  who  ia  injured  by  falling  through  such  hole  at  a  time  when 
it  was  open  and  unguarded,  though  it  is  not  shown  bv  whom  the  door 


Index.  937 

was  removed  and  the  hole  left  open  and  unguarded.  Barry  v.  TerhUd' 
sen,  55. 

12.  Right  to  Kbbp  Openings  in  Sidewai.ks  in  front  of  one's  premises,  if  it 
exists  at  all,  must  come  from  legislative  declaration,  municipal  license, 
or  general  usage.     Id. 

13.  Plaintiff  is  not  Guilty  of  Contributoey  Negugence,  because,  assum- 
ing a  sidewalk  in  a  populous  city  to  be  safe,  she  permitted  her  attention 
to  be  momentarily  attracted  in  another  direction,  and  fell  into  a  hole  in 
such  sidewalk,  from  which  the  covering  had  been  removed.     Id. 

See  Ice;  Landlord  and  Tenant,  6. 

HOMESTEADS. 

1.  Homestead  Exemption  is  not  in  Derogation  of  Cobcmon  Law,  but  is 

rather  the  limitation  and  exclusion  of  that  exemption.  The  rule  requir* 
ing  strict  construction  has  therefore  no  application  to  homestead  stat- 
ntes,  as  against  the  debtor,  or  to  the  constitutional  provision  securing  to 
him  a  homestead.     Rigga  v.  Sterling,  554. 

2.  Homestead  Exemption  Statutes  and  Constitutional  Pro  visions  arb 

Construed  with  Favor,  liberally,  and  in  accordance  with  their  equity 
and  spirit.     Id. 

3.  Homestead  Exemption,  as  Established  by  Constitution  and  Laws  or 

Michigan,  is  not  Alone  for  Husband,  and  his  protection,  but  for  the 
benefit  of  the  wife  and  children  as  well.     Id. 

4.  Homestead  Exemption  is  not  Only  Pbivilegb  Conferred,  but  under 

the  constitution  of  Michigan  it  is  an  absolute  right;  and  was  intended 
to  secure  against  creditors  a  home,  and  to  a  certain  extent  the  means 
of  support,  to  every  family  in  the  state.  Id. 
6.  Occupancy  is  Itself  Evidence  of  Election  as  Homestead,  in  Michigan, 
by  the  owner  of  the  parcel  occupied,  and  a  notice  to  all  of  its  homesteail 
character,  and  of  his  selection,  and  the  extent  thereof,  to  enablu  him  to 
enjoy  the  fullest  protection  of  the  law,  where  the  land  claimed  as  a 
homestead  is  within  the  quantity  limited  by  the  constitution,  and  is 
occupied  by  the  owner.     Id. 

6.  Homestead,  within  Constitutional  Limit  as  to  Quantity,  when  Oncb 

Established,  in  Michigan,  by  election,  selection,  and  occupancy,  is  se- 
core  from  the  claims  of  creditors,  unless  it  exceeds  in  value  fifteen  hun- 
dred  dollars;  in  which  event,  if  it  is  capable  of  division,  the  creditor  may 
apply  to  a  court  of  equity  to  have  it  divided,  if  the  debtor  will  not  con* 
sent  thereto;  but  if  in  any  case  the  homestead  is  incapable  of  division,  it 
may  be  sold  in  the  manner  provided  by  statute,  and  the  sum  of  fifteen 
hundred  dollars  shall  be  reserved  and  paid  to  the  debtor  with  any  excess 
after  satisfying  the  execution.     Id. 

7.  Excess  or  Value  will  not  Make  Any  Other  Action  on  Part  or 

Debtor  Necessary,  in  Michigan,  uni.il  after  the  appraisal  provided  for 
by  statute  has  been  made,  where  the  debtor  has  selocte<I  his  homestead, 
which  is  within  the  constitutional  limit  as  to  quantity;  and  in  the  ab< 
sence  of  such  appraisal,  or  a  division  had  under  the  order  or  decree  of  a 
court  of  quity,  no  valid  sale  of  the  homestead  so  selected,  or  any  part 
thereof,  can  be  made  by  the  sherifiT.  Id. 
%.  Homestead,  Onck  Establisukd,  can  never  be  Waived,  in  Michigan, 
except  by  abandonment,  or  alienated,  except  by  deed  of  some  kind;  but 
prior  to  an  election  and  selection  by  the  owner,  it  may  be  waived  bj 
failore  to  make  such  election  and  selection  before  sale  by  the  sherifll    Id. 


938  Index. 

9.  Waiver  of  Homestead  Biqht  by  Husband  cai»not  Affect  Wife's  In- 

terest THEREIN;  nor  can  the  abandonment  or  waiver  thereof  by  one 
entitled  to  its  enjoyment  affect  the  interest  of  any  other  person  equally 
entitled  thereto.     Id . 

10.  Wife  does  not  Affect  her  Homestead  Right  by  Taking  Deed  or 
Homestead  from  her  husband  without  consideration,  and  such  a  con- 
veyance cannot  be  considered  in  fraud  of  creditors.     H. 

11.  Price  Obtained  for  Homestead  on  Execution  Sale  is  not  CJonclusivb 
as  to  its  value  in  ejectment  for  the  possession  of  the  property  under  the 
sale.     Id. 

12.  Court  does  not  Abuse  its  Discristion  in  Limitino  Number  of  Wit- 
nesses as  to  the  value  of  the  homestead  to  six  on  each  side,  where  the 
only  question  in  an  action  of  ejectment  for  the  possession  of  the  property 
under  an  execution  sale  was  as  to  the  value.     Id. 

13.  Person  cannot  Lawfully  Hold  Two  Homesteads  at  the  same  time. 
Kaea  v.  Gross,  767. 

14.  When  Homestead  is  Abandoned,  an  intention  to  return,  by  which  the 
homestead  rights  are  preserved,  must  be  formed  at  the  time  of  removaL 
It  can  have  no  influence  in  restoring  the  right  once  lost  by  actual  aban- 
donment, until  executed  by  actual  resumption  of  occupancy.  A  subse- 
quent unexecuted  intention  to  resume  possession  would  not  restore  the 
right  to  hold  the  homestead  exempt.     Id. 

15.  When  Homestead  Right  is  Lost  by  Abandonment  and  possession  is 
again  resumed,  it  only  gives  origin  to  a  tew  homestead  right,  dating  from 
the  new  occupancy,  and  having  no  retroactive  validity  on  the  old  right, 
and  possessing  no  force  against  the  rights  of  third  persons  acquired  in 
the  interim  between  the  loss  of  the  old  and  the  acquisition  of  the  new 
right.     Id. 

16.  Removal  of  Family  from  Homestead  constitutes  a  prwio  fade  case  of 
abandonment,  and  raises  a  presumption  against  the  claim  of  homestead, 
which  must  be  rebutted  before  such  claim  can  be  successfully  asserted. 
Id. 

17.  Length  of  Time  that  Claimant  is  absent  from  homestead  constitutes  an 
importjint  factor,  in  connection  with  other  facts,  in  determining  whether 
the  aggregate  result  of  all  the  facts  is  sufficient  to  establish  that  a  for- 
feiture of  the  acquired  right  has  occurred.     Id. 

18.  Prolonged  Absence  from  Homestead,  like  the  removal  of  the  family,  is 
sufficient  to  cast  the  onus  of  rebutting  the  presumption  of  abandonment 
on  the  claimant  of  the  homestead.     Id. 

19.  Abandonment  of  Homestead  is  Question  of  Fact,  each  case  resting 
upon  its  own  peculiar  circumstances,  yet  actual  removal  with  no  inten- 
tion to  return  amounts  to  a  forfeiture  of  the  right  as  against  creditors 
and  purchasers,  although  no  new  homestead  right  is  ticquired.     Id. 

20.  Removal  from  Homestead,  coupled  with  the  acquisition  of  a  new  home 
elsewhere,  is  conclusive  proof  of  abandonment  of  the  old  homestead.     Id. 

21.  Widow  Residing  upon  her  Homestead,  who  remarries  and  immediately 
removes  with  her  children  and  household  goods  to  the  home  of  her  new 
husband,  without  expressing  an  intention  of  returning  to  her  old  home- 
stead, must  be  considered  as  abandoning  her  old  homestead.     Id. 

22.  Widow  Residing  on  Homestead,  Who  Remarries,  is  as  fully  competent 
to  form  an  intention  of  abandonment  of  the  homestead  as  if  she  remained 
single,  and  she  is  as  fully  affected  by  the  usual  unfavorable  presumptions 
attendant  on  removal  and  prolonged  absence  from  her  old  homestead. 


Index.  939 

and  is  as  much  bound  to  overcome  such  presumptionB,  to  l>e  successful, 
as  is  any  other  person.  The  acquisition  of  a  new  homestead,  at  the  resi- 
dence of  her  second  husband,  is  conclusive  proof  of  her  abandonment  of 
the  old  one.     Id. 

23.  HusBAiiD  CANNOT  BT  Devisb,  or  by  his  Bole  deed,  convey  or  mortgage  the 
homestead:  Mo.  R.  S.,  sec.  2689.     Id. 

24.  Valid  Mortgage  of  Land  Entebi-d  as  Homestead  under  Laws  of 
United  States  may  be  made  by  the  claimant  after  he  has  received  his 
final  certificate,  and  before  the  patent  therefor  has  been  issued  \m  him. 
Lewis  V.  WethertlU  674. 

HOMiaDK 
See  Criminal  Law,  15. 

HUSBAND  AND  WIFE. 

1.  FlNDINO  THAT  HuSBAND  ACTED   A3  DCLT   AUTHORIZED   AOENT  OF  WiFB, 

in  employing  a  person  to  perform  labor  upon  the  wife's  bouse,  is  justi- 
fied, in  a  proceeding  to  enforce  a  mechanic's  lien  therefor,  by  evidence 
that  the  husband  had  general  management  of  the  property,  that  he  em- 
ployed the  petitioner  to  perform  the  labor,  that  the  wife  knew  he  was 
working  upon  the  house,  and  that  she  personally  gave  him  directions  as 
to  parts  of  the  work.      Wheaton  v.  Trimble,  463. 

2.  WiFB  Who  has  been  Deserted  by  Husband  mat  Make  Bi.swno  Cos- 

tract  FOB  Medical  Services.  Such  services  are  rcgariled  in  law  aj 
"  necessaries, "  the  same  as  food  and  clothing.   CaraUm  v.  Ilanseltnan,  GOG. 

3.  Married  Women  have  not  General  Power  under  MicnioAN  Statitks 

to  Make  Agreements  of  all  kinds,  but  they  must  necessarily  bo  able  to 
make  contracts  concerning  what  it  is  essential  for  their  safety  and  secu- 
rity to  procure.     Id. 

4.  Husband  Who  Deserts  his  Family,  and  does  Nothing  for  their  Sup- 

port, may  be  regarded  as  refusing  to  perform  the  contracts  of  his  wife 
for  necessaries,  within  the  meaning  of  a  statute  which  makrts  a  wife  lia- 
ble to  be  sued  upon  any  contract  on  which  her  hoaband  is  not  liable,  or 
where  he  refuses  to  perform  it.     Id. 

6.  Evidence  of  Agreement  between  Grantor  and  Husband  of  Gra.vtee, 

by  which  the  grantor  released  his  claim  to  tiuiber  excepted  by  the  deed, 
is  inadmissible  in  an  action  of  replevin  by  the  grantor  for  the  timber, 
and  should  not  be  submitted  to  the  jury,  where  no  agency  of  th«  hus- 
band was  shown,  and  where  the  alleged  settlement  was  made  by  the 
hoaband  long  after  his  wife  had  convoyed  the  land  to  strangers,  and 
several  years  after  he  had  separated  from  his  wife.  Wait  v.  Baldwin,  551. 
See  Duress;  Exemptions,  6;  Homestead;  Surettship;  Wills,  14. 

ICE. 
1.  Riobts  of  Travelino  upon  OB  OF  Harvesting  Ice  upon  a  navigable  river 
are  not  absolute  in  any  person,  bnt  are  public  rights,  which  belong  to 
the  whole  community;  their  enjoyment  dc{*Dds  very  much  upon  first 
appropriation,  as  one  man's  poneMion  may  ezclade  others.  Woodman 
V.  Pitman,  342. 

7.  Right  to  Travel  upon  and  to  Harvbt  Ice  on  navigable  rivers  are 

relative  or  comparative.  Each  must  be  exercised  reaeonably,  depending 
upon  the  importance  of  the  difl'erent  rights  in  different  localities,  and  the 
benefits  which  the  community  derive  tbcrcfmm.     Id, 


040  Index. 

8.  Leoklaturb  has  CoNsrrrcrnoNAL  Authoeity  to  provido  rules  regulating 
the  possession  and  cultivation  of  ice  upon  navigable  rivers,  where  the 
tide  ebbs  and  flows,  at  least  so  far  as  the  business  is  carried  on  below 
low-water  mark,  and  it  may  provide  for  the  adjustment  of  conflicting 
interests  which  may  affect  that  privilege.     Id. 

4.  In  Absence  of  Statute,  Judicial  Authority  may  determine  the  manner 
in  which  the  privileges  of  the  possession  and  cultivation  of  ice  on  navi- 
gable rivers  may  be  best  enjoyed  by  the  public,  provided  no  violence  is 
done  to  existing  law.     Id. 

6.  Privilege  of  Harvesting  Ice  on  the  Penobscot  River  at  Bangor,  and  for 
some  distance  below,  is  incomparably  greater  than  that  of  traveling  on 
*;he  ice,  and  the  latter  privilege  cannot  be  set  up  to  prevent  or  abridge 
the  former  to  any  extent  whatever.     Id. 

6.  Right  of  Travel  on  Ice  on  navigable  rivers  in  all  places  is  generally  in- 

ferior  to  the  right  of  navigation.  Whether  it  can  ever  become  a  superior 
right  depends  upon  circumstances.     Id. 

7.  Harvesting  Ice  on  Navigable  Riyers  becomes  a  nuisance  when  only 

actual  injury  is  sustained  by  the  public,  and  an  unlawful  obstruction  to 
navigation  is  caused  thereby.     Id. 

8.  Ice-fields  on  Navigable  Rivers,  after  being  staked,  fenced,  and  scraped, 

and,  in  some  instances,  connecting  fields  extending  across  the  river,  are 
so  far  the  property  of  the  appropriator  that  an  action  will  lie  against  one 
who  disturbs  his  right.     Id. 

9.  Appropriators  of  Ice  on  Navigable  Rivers  should  by  suitable  means 

reasonably  guard  their  fields  from  danger  to  persons  who  may  be  likely 
to  innocently  intrude  upon  them.  But  the  former  are  not  liable  for  the 
negligence  of  the  latter,  to  which  they  do  not  contribute.     Id. 

10.  Though  Appropriator  of  Ice  on  navigable  river  may  have  left  his  field 
unprotected  from  danger  to  a  traveler,  still  he  is  not  liable  for  an  injury 
caused  by  the  traveler's  negligence  and  want  of  exercise  of  ordinary  care. 
Id. 

INFANCY. 

1.  Infant  may  Avoid  Contract  of  Personal  Nature,  or  one  relating  to  per- 

sonal property,  either  before  or  after  his  majority.    Adams  v.  Beall,  379. 

2.  Money  Paid  by  Minor,  in  Consideration  of  his  being  Admitted  as 

Partner  in  a  business,  cannot,  on  his  voluntarily  withdrawing  from  the 
partnership  into  which  he  had  actually  entered,  and  in  which  he  had  re- 
mained for  more  than  a  year,  be  recovered  by  him,  unless  he  was  induced 
to  enter  into  the  partnership  by  the  fraudulent  representations  of  the 
party  to  whom  he  paid  the  money.     Id. 

See  Master  and  Servant,  1&-19;  Negligence,  5,  6. 

INJUNCTIONS. 
\,  Injunction  will  not  Lie  to  Restrain  Land-ownee  feom  EIrectino  ani> 
Using  a  structure  on  his  premises  to  overlook  exhibitions  on  adjoining 
grounds  to  which  an  admission  fee  is  charged,  as  those  of  a  base-ball 
club,  where  it  does  not  appear  that  the  complainant  enjoys  any  exclusive 
franchise  from  the  legislature,  or  under  any  provision  of  the  city  charter 
or  by-laws,  or  under  any  resolution  or  other  action  of  the  city  council, 
in  the  use  of  its  grounds.  If  in  such  case  the  complainant  has  been 
pecuniarily  injured,  the  remedy  at  law  is  wholly  adequate.  Detroit 
Base-ball  Chib  v.  Deppert,  566. 


Index.  941 

2.  iNJimcnoN  wni,  be  Granted  to  Owneb  ot  Fakh  havikq  oh  It  Lakoi 

CASTsnsa  Factory  in  full  operation,  with  a  large  growing  crop  of  com 
to  be  canned,  to  prevent  a  threatened  sale  and  removal  of  the  canning 
machinery.    Dudley  v.  Hurst,  368. 

3.  Injury  13  Irreparable  Which  cannot  be  Measitbed  by  any  known 

pecuniary  standard.    Id. 

INNKEEPERS. 

1.  Law  Ihfoses  on  Innkeeper  Extraordinary  Liability  for  tlie  protec- 

tion of  the  baggage  of  his  guest.  He  can  avoid  it  only  on  the  grounds 
of  the  loss  having  been  occasioned  by  the  act  of  God,  the  public  enemy, 
the  misconduct  of  the  guest,  or  of  the  friend  he  brings  with  him,  O'Brien 
V.  VaUl,  219. 

2.  Innkeeper's  Liability  A3  Such  Ceases  when  his  guest  pays  his  bill  and 

departs,  announcing  that  he  would  be  gone  a  few  days,  but  would  leave 
his  baggage  to  be  cared  for  till  his  return.  The  innkeeper's  subsequent 
duty  is  that  of  a  gratuitous  bailee  of  such  baggage,  liable  only  for  gross 
negligence.    Id. 

3.  It  13  NOT  Negligence  in  Law  fob  Guest  at  Hotel  to  Retain  $495  in 

Belt  on  his  person  while  sleeping  in  a  room  by  himself,  although  the 
bolt  of  the  door  to  his  room  could  be  opened  by  a  wire  from  the  outside. 
SmUh  V.  Wilson,  669. 

4.  Innkeeper's   Liability  in   Respect,  to  his  Guest's  Money  is  not 

LiMiTEDTO  Such  Sum  as  is  necessary  for  the  guest's  traveling  ex- 
penses.    Id. 

6.  Guest's  Failubx,  upon  Retibino,  to  Bolt  Door,  aiter  havino  Locked 
It,  is  hot  Such  Nequoence  on  his  part  as  will  defeat  an  action  by 
him  against  the  innkeeper,  to  recover  the  value  of  property  stolen  from 
the  room  during  the  night,  if  the  existence  of  the  bolt  was  not  known 
to  him,  and  his  attention  was  not  in  any  way  called  to  it.  Spring  t. 
Soger,  451. 

INSANITY. 

Insanity. — Belief  in  spiritualism  does  not  of  itself  show  insanity,  unless 
it  amounts  to  a  monomania.     Connor  v.  Stanley,  84. 

INSOLVENCY. 
Jvsoiont  against  Insolvent  Entered  aiter  Orantino  or  Dischaboi 
is  conclusive  against  him,  if  regularly  obtained.    Anderaon  t.  Ooff,  84. 

INSURANCR 

1.  Gehkral  Agent  of  Firb  Insurance  Company  may  waive  a  oondition 

inserted  in  the  policy  issued  by  the  company.  Condition  in  policy  o( 
insurance  is  waived  by  the  issuing  of  such  policy  by  a  general  agent,  who 
at  that  time  knows  of  and  assents  to  facts  which  coustituto  a  breach  of 
such  condition.     Kruger  v.   Western  Fire  etc  In*.  Co.,  42. 

2.  Waiver  or  Breach  or  Condition  at  Issuance  or  Poucr  of  insoranc* 

continues  in  favor  of  all  renewals  granted  of  such  policy.  Id, 
S.  Insurance  Company  is  Deemed  to  have  Waived  CosDmoNs  or  Policy 
making  a  misstatement  as  to  encumbrances  upon  the  property  to  avoid 
the  insurance,  where  it  kad  knowledge  at  the  time  of  the  applicatioa 
that  the  property  was  encumbered.  WiUon  v.  ilimnetola  etc  In*,  Au'n, 
659. 


942  Index. 

4.  Life  Insurance  —  FoRFErruRE  of  Paid-up  Policy.  —  A  policy  of  life  in- 
surance  provided  that  it  should  become  void  on  failure  to  pay  any  annual 
premium,  or  interest  annually  in  advance  on  any  outstanding  premium 
notes;  but  that,  after  the  payment  of  two  or  more  annual  premiums,  on 
default  in  the  payment  of  any  subsequent  premium,  the  company  would 
convert  the  policy  into  a  "paid-up  "  one  for  as  many  tenth  parts  of  the 
sum  originally  insured  as  there  had  been  complete  annual  payments  when 
default  was  made,  provided  application  was  made  for  such  conversion 
within  one  year  after  default.  The  insured  paid  two  annual  premiums, 
a  portion  in  cash,  and  the  balance  in  premium  notes  still  outstanding, 
made  default  in  the  payment  of  the  next  i^remium,  and  applied  for  a 
"  paid-up  "  policy.  Thereupon  the  company  indorsed  upon  the  policy 
that  it  was  recognized  as  binding  for  two  tenths  thereof,  "  subject  to  the 
terms  and  conditions  expressed  in  the  policy."  Thereafter  the  insured 
paid  the  interest  on  the  outstanding  premium  notes,  annually,  iu  ad- 
vance, for  two  years,  and  then  ceased  to  pay  the  same.  In  an  action  to 
recover  the  amount  due  on  the  policy,  held,  that  the  company's  indorse- 
ment upon  the  policy  was  equivalent  to  a  "paid-up"  policy,  and  that 
the  failure  to  pay  interest  on  the  outstanding  premium  notes  worked  a 
forfeiture  thereof.     Holman  v.  Cojiiinental  Life  Ina.  Co.,  97. 

6.  "Paid-up"  Policy  of  Life  Insurance  may  be  Forfeited  by  Non-pay- 
ment of  interest  on  premium  notes,  given  for  premiums  accruing  while 
the  original  policy  remained  in  force.     Id. 

6.  Naminq  Policy  of  Insurance  Non-forfeitable  does  not  render  inappli- 

cable the  rule  that  a  writing  must  be  construed  by  its  terms,  and  if  by 
these  it  is  forfeitable,  a  defense  showing  the  existence  of  facts,  which  by 
these  terms  create  a  forfeiture,  must  be  sustained.     Id. 

7.  Where  Policy  of  Insurance,  Containing  Covenant  that  Insuranck 

should  Continue  and  be  in  force  from  the  expiration  of  the  time  men- 
tioned  therein  for  its  duration  so  long  as  the  insured  or  their  assigns 
should  continue  to  pay  the  like  premium,  provided  such  premium  were 
actually  paid  to  the  company  and  indorsed  on  the  policy,  or  a  receipt 
given  therefor  by  the  company,  is  issued  under  seal  to  a  firm  then  com- 
posed of  two  members,  but  to  which  a  third  member  is  afterwards 
admitted  without  change  in  the  name  of  the  firm,  and  the  firm  so  con- 
stituted continues  to  pay  the  premium  as  covenanted  in  the  policy,  taking 
renewal  receipts  therefor  not  under  seal,  upon  the  happening  of  a  loss, 
the  firm  as  constituted  at  the  date  of  the  renewal  receipt  cannot  main- 
tain an  action  of  assumpsit  thereon.  But  such  firm,  so  constituted,  may 
maintain  such  an  action  on  another  renewal  receipt  given  by  the  same 
company,  where  the  policy  issued  to  the  firm  before  the  admission  of  the 
new  partner  contained  no  covenant  for  its  extension  from  year  to  year, 
but  expressly  declared  that  the  insurance  should  continue  for  tlie  term 
of  one  year,  and  no  longer.  And  want  of  notice  to  the  insurance  com- 
pany of  the  change  in  the  firm  cannot  affect  the  right  to  recover  in  that 
case.    Firemen's  Ins.  Co.  v.  Floss,  398. 

8.  Insurance  Company  will  be  Regarded  as  having  Waived  Objections 

to  Preliminary  Proofs  of  loss,  if  it  withholds  or  fails  to  disclose  such 
objections  beyond  a  reasonable  time  after  such  proofs  are  furnished,  or  if 
its  refusal  to  recognize  the  obligation  to  pay  is  placed  by  it  upon  other 
and  distinct  grounds  than  alleged  defects  in  the  preliminary  proofs.     Id. 

9.  Insurance  Company  does  not  Hold  Surplus  or  Profits  as  Trust  Fund 

for  the  benefit  of  the  holders  of  policies  on  the  tontine  savings  fund  as- 


Index.  943 

carance  plan,  under  the  New  York  law,  where,  by  its  policies,  it  agrees 
that  the  surplus  or  profits  derived  from  such  policies  as  shall  cease  to 
be  in  force  before  the  completion  of  their  respective  tontine  dividend 
periods  shall  be  appointed  equitably  among  such  policies  as  shall  com* 
plete  such  periods.  Pierce  v.  Equitable  Life  Assurance  Society,  433. 
10.  Bill  in  Equity  can  bk  Maintained  against  Insurance  Company  by 
Holder  ot  Tontine  Policy,  who  is  to  be  regarded  as  a  creditor,  and 
not  a  member  of  the  corporation,  and  without  joining  the  other  policy- 
holders of  his  class,  or  suing  on  their  behalf,  to  obtain  an  account  of  the 
surplus  or  profits  derived  from  such  policies  as  should  cease  to  be  in 
force  before  the  completion  of  their  respective  tontine  periods,  which 
were  to  be  apportioned  equitably  among  such  policies  as  should  com* 
plete  such  periods,  although  the  defendant  is  incorporated  in  another 
state,  outside  of  which  it  is  a  great  incouvenience  for  it  to  account,  but 
not  an  insuperable  one,  it  having  a  place  of  business,  and  an  agent  to 
receive  service  of  process  in  the  state  where  the  suit  is  brought,  and  it 
having  waived  any  objection  to  the  exercise  of  the  jurisdiction  of  tho 
coTirt  by  appearing  generally  and  answering  to  the  merits.  Id. 
See  CoRPOBATiONS,  24. 

INTEREST. 
Intebest  is  not  Allowable  in  an  action  for  the  breach  of  a  contract,  if  the 
damages  sought  to  be  recovered  are  so  unliquidated  and  uncertain  that 
they  must  be  made  certain  by  proof  and  adjudication.     Cobttm  v.  Oood' 
an,  75. 

See  Damaoss,  4. 

INTERPLEADER. 
Intbrpleadeb  —  Jury  Trial.  —  Where,  under  the  code,  the  defendant  ob- 
tains an  order  substituting  a  third  party  as  defendant,  and  pays  the  moneys 
claimed  into  court,  in  order  that  the  substituted  defendant  and  the 
plaintiff  may  litigate  and  determine  their  respective  claims  to  such 
moneys,  the  action  thereupon  becomes  an  equitable  suit,  in  which  neither 
party  is  entitled  to  a  jury  trial,  and  the  verdict  of  a  jury,  if  one  is 
called,  may  be  disregarded  by  the  court.     Clark  v.  Moaher,  798. 

JUDGMENTS. 

1.  JUDOMENT  QuWnilO  TlTLE,  FOUNDED  ON  SkRVICS  Of  SXTMMONS  by  publioAo 

tion,  will  be  respected  and  enforced  in  this  state,  as  a  complete  divesti* 
ture  of  the  title  of  the  judgment  defendant      Venable  v.  DutcJt,  260. 

2.  Judgment  Based  on  Alias  Summons  issued  without  any  return  of  the 

original,  and  which  imperfectly  states  the  nature  of  the  cause  of  action 
and  fails  to  notify  the  defendant  to  appear  and  answer  at  the  office  of 
the  justice,  is  not  void.     Dore  v.  Dougherty,  43. 

8.  Personal  Judgment  AOAiNarr  Non-resident  whoee  property  baa  been 
attached  within  the  state  is  valid,  and  sufficient  to  sustain  a  sale  of  sneb 
property  made  under  such  judgment,  though  the  service  of  summons 
was  by  publication.     Anderton  v.  Ooff,  34. 

4.  Judgment  is  Lien  urON  Actual,  not  the  apparent,  interest  of  the  de- 
fendant   ^urite  V.  Johnson,  252. 

ft.  In  Minnesota,  Holder  or  Junior  Judomzmt  Lien  AoQunia  No  Prbv- 
XRENCE  OVER  SENIOR  JUDGMENT  LlEN  by  virtue  of  prior  proceedings  to 


944  Index. 

execute  his  jtidgment,  the  senior  jndgment  creditor  not  being  a  party  to 
such  proceedings.  Nor  is  a  different  rule  applied  where  the  judgment 
debtor  has  made  fraudulent  conveyances,  which  are  void  alike  as  respects 
both.  The  judgments,  in  such  cases,  are  liens  at  law,  and  as  to  real 
estate  necessarily  take  precedence  according  to  the  date  of  the  record- 
Jacl-son  V.  ffolbrook,  683. 
0.  JXTDOMENT  CREDITOR  MAT  RE3T  EXCLUSIVELY  UPON  HIS  RiGHTS  AND  RemB> 
DIB3  AT  Law,  without  invoking  the  aid  of  a  court  of  equity.    Id, 

7.  Salk  upon  Junior  Judgment  is  Subject  to  All  Such  Prior  Judgments 

as  are  in  fact  liena  upon  the  land  sold,  and  the  purchaser  at  such  sale 
takes  subjpct  to  the  lien  of  a  senior  judgment.     Id. 

8.  Judgment  for  Defendant,  on  Merits,  in  Action  por  Specific  Per- 

formance of  a  contract  for  the  sale  of  real  estate,  is  a  bar  to  another 
action  to  reform  the  same  contract,  and  to  enforce  it  as  reformed.  Thomas 
V.  JosUn,  G24. 

9.  Party  is  Bound  by  his  Election  to  Sue  on  Written  Contract  as  exe- 

cuted, where  he  proceeds  to  trial  and  judgment  in  such  suit,  and  he 
cannot  thereafter  bring  an  action  to  reform  the  contract.     Id.  , 

10.  Erroneous  Judgment  is  Valid  until  Reversed,  and  Protects  Plain- 
tiff in  enforcing  it.     Peck  v.  McLean,  655. 

11.  Defendant,  after  Reversal  of  Erroneous  Judgment  against  Hni,  13 
Entitled  to  Restitution  of  only  so  much  as  the  plaintiflF  has  received 
upon  the  execution  levied  thereunder.     Id. 

12.  Judgment  Prematurely  Entered,  as  where  the  summons  has  been 
served  but  the  time  allowed  by  law  to  plead  has  not  expired,  is  irregular 
merely,  and  not  void.     Mitchell  v.  Aten,  231. 

13.  Irregular  Judgment  cannot  be  Collaterally  Attacked,  though  it 
may  be  set  aside  on  motion  or  by  some  appropriate  appellate  proceeding. 
Id. 

14.  Judgment  may  be  Amended  Nono  fro  Tunc  after  Lapse  of  Term, 
when  the  record  discloses  that  the  judgment,  as  amended,  would  have 
been  entered  in  the  first  place  but  for  the  inadvertence  of  the  court,  or 
the  error  or  omission  of  the  clerk.    Adams  v.  Be  Qua,  191. 

15.  JuDGMFjn"  against  Defendant  Personally  may  be  Amended  so  as  to 
be  against  him  as  administrator  de  homa  non,  cum  testamento  amutxo,  etc., 
where  the  record  shows  that  the  action  was  against  him  in  his  capacity 
of  such  administrator.    Id. 

16.  Complaint  on  Foreign  Judgment  need  not  Allege  that  Court  that 
Rendered  It  had  Jurisdiction  either  of  the  cause  or  the  parties.  A 
judgment  of  a  foreign  court,  complete  and  regular  on  its  face,  is  prima 
facie  valid.     Gunn  v.  Peakett,  661. 

17.  Foreign  Judgment  may  be  Proved  by  Copy  thereof,  duly  authenti- 
cated by  the  duly  authenticated  certificate  of  an  officer  properly  authorized 
by  law  to  give  a  copy.    Id. 

18.  Great  Seal  of  State  or  Government  Proves  Itself.    Judgment  that 

"Action  be  Dismissed  without  Prejudice  to  another  action "  is,  by 
its  terms,  no  bar  to  a  subsequent  action  for  the  same  cause.  And  it 
makes  no  difference  whether  the  saving  clause  was  properly  or  improp- 
erly attached  to  the  judgment.  Id. 
See  Attachments,  6;  EIjectment;  Executions,  1;  Fraudulent  Convby- 
ANCEs;  Insolvency;  Replevin. 

JUDICIAL  SALES. 
See  Attachments;  Executions;  Sheriffs. 


Index.  945 

JURISDICTION. 

1.  Bebvicb  by  Publication  Cobcpleted  Prior  to  Date  o»  Jitdoment  givea 
jarisdiction.     MUcheUv.  Aten,  2Zl. 

%  Remedy  at  Law  13  Exclusive  only  when  the  rights  of  parties  spring  from 
legal  duties  and  obligations;  and  even  in  thoea  cases,  if  the  legal  remedy 
is  inadequate  to  afford  the  proper  relief,  and  property  is  wrongfully  with- 
held to  satisfy  the  just  claims  of  parties,  and  beyond  the  reach  of  the 
law,  equity  may  be  successfully  appealed  to,  and  will  furnish  the  neces* 
sary  assistance  in  most  cases  to  prevent  a  failure  of  justice.  Qoifrty  t. 
WhiU,  537. 

JURY  AND  JURORS. 

1.  Opinion  Which  Disqualifies  Juror  in  Criminal  Cass  is  of  that  fixed 

character  which  repels  the  presumption  of  innocence  of  the  accused,  who 
is  already  condemned  in  the  juror's  mind;  and  such  disqualification  does 
not  arise  because  it  will  require  some  evidence  to  remove  impressions  or 
opinions  formed  from  rumors,  newspaper  statements,  or  other  sources. 
People  V.  Barker,  501. 

2.  Sources  op  Information  ars  Important  in  Determtnino  Eftkct  Likely 

TO  HAYS  BEEN  PRODUCED  UPON  MiND  OF  JuBOB,  in  a  criminal  case, 
and  the  influence  likely  to  be  exerted  upon  his  judgment;  but  impres* 
■ions  made  upon  the  mind  which  lead  towards  certain  conclusions, 
whether  reached  or  not,  will  always  require  other  impressions  to  be 
made  to  eradicate  the  former  ones,  or  to  lead  to  different  conclusions, 
or  in  other  words,  will  require  some  evidence  to  remove  them.     Id. 

%,  Question  whether  Jcrob  in  Criminal  Case  is  Disqualified  by  Rea- 
son OF  HIS  Opinion  must  be  Alwavs  One  of  Degree;  and  the  trier 
is  called  upon  to  determine  whether  the  opinion  entertained  is  of  that 
fixed  or  permanent  character  which  disqualifies  him  from  coming  to  the 
case  in  a  fair  and  impartial  frame  of  mind,  unaffected  with  prejudice  or 
favor  to  either  party.     Id. 

4.  Accused  ls  not  Prejudiced  by  Improper  Overrulino  Challenob  Foa 
Cause,  where  he  thereupon  peremptorily  challenges  the  juror,  and  ac- 
cepts a  jury  without  exhausting  his  peremptory  challenges.     Id, 

fi.  Court  is  Invested  with  Certain  Degree  of  Discretion  in  SELScnoif 
OF  Jurors,  which  is  to  be  exercised  by  seeing  that  proper  and  competent 
men  are  selected;  and  so  long  as  the  case  of  a  party  is  not  prejudiced  by 
the  exercise  of  such  discretion,  he  cannot  complain.  Id. 

d.  Court  jtAY  Exclude  Juror  from  Panel  of  its  Own  Motion,  where, 
during  the  impaneling,  he  exhibits  such  a  reckless  disregard  of  his 
duty  aa  to  make  it  quite  evident  that  he  is  unfit  to  serve,  by  failing  to 
appear  in  court  at  the  time  to  which  it  had  adjourned,  and  remaining  in 
a  room  of  a  hotel,  where  be  was  found  after  an  hour's  search,  playing 
pool.     Id. 

7.  Court  may  Order  Juror  Discharokd  and  Another  Juror  Drawn  in 

his  Stead,  where,  after  the  jury  had  been  selected  and  sworn,  and  be- 
fore any  further  proceedings  were  had  in  the  case,  it  was  ascertained 
that  such  juror  was  an  alien.     Id. 

8.  Alien  is  not  Qualified  in  Any  Respect  to  Srr  upon  Jury,  in  Micbi* 

OAN,  and  a  jury  selected  and  sworn,  but  containing  an  alien,  consists  of 
only  eleven  jurors.     Id. 

9.  Jury  Trial.  —Counsel  have  no  right  to  read  law  books,  nor  to  argu« 

questions  of  law  to  the  jury.     Sullivan  v.  Royer,  61. 
▲jf.  8t.  Rir..  Vol.  L— 60 


946 


Index. 


10.  Verdict  ov  Jury  in  Suit  in  Equitt  is  advisory  merely. 
See  Interpleader;  Pleading  and  Practice. 


ItL 


LANDLORD  AND  TENANT. 

1.  Lease  ot  "  First  Floor  in  Building  "  Includes  Outside  of  Front 

Wall  of  that  part  of  the  building,  with  the  right  to  use  and  enjoy  the 
same  as  leased  premises,  in  the  absense  of  anything  to  the  contrary  in 
the  lease.     Lowell  v.  Strakan,  422. 

2.  Lessee's  Agreement  to  Allow  Third  Person  to  Place  Sign  upon  Out- 

side Wall  of  Leased  Building,  for  a  certain  time,  in  consideration  of 
an  annual  payment,  creates  a  license  merely,  and  is  therefore  not  a  breach 
of  a  covenant  not  to  underlet  any  part  of  the  premises.     Id. 

8.  Landlord  is  under  No  Obligation  to  Subtenant  to  Keep  Leased 
Premises  in  Repair,  and  is  therefore  not  liable  in  damages  for  injuries 
to  the  property  of  the  subtenant  caused  by  the  falling  of  the  building 
by  reason  of  the  defective  condition  of  its  walls,  where  the  subletting 
and  occupancy  under  it  was  without  the  knowledge,  notice,  or  assent  of 
the  landlord,  and  in  violation  of  a  covenant  not  to  sublet.  Donaldson  v. 
Wilson,  487. 

4.  Lessee  Takes  Risk  of  Quality  of  Premises  Hired,  in  the  absence  of  an 
express  or  implied  warranty,  or  of  deceit,  on  the  part  of  the  lessor,  and 
cannot  ordinarily  maintain  an  action  against  the  lessor  for  injuries  sus- 
tained by  reason  of  their  defective  condition;  but  the  lessor  is  liable  if 
the  lessee  is  injured  through  concealed  and  dangerous  defects,  known  to 
the  lessor,  and  which  a  careful  examination  of  the  premises  by  the  lessee 
would  not  discover.     Cowen  v.  Sunderland,  469. 

6.  Evidence  should  be  Submitted  to  Jury,  to  Determine  whether  Land 
lord  Knew  of  Defective  Covering  of  Cesspool,  and  the  danger 
resulting  therefrom,  and  neglected  to  inform  the  tenant  thereof,  and 
whether  the  tenant  had  failed  to  make  a  proper  examination  of  the  prem- 
ises, in  an  action  by  a  tenant  against  her  landlord  for  injuries  sustained 
by  her  from  falling  into  a  cesspool  in  the  yard  of  the  premises,  where  it 
appeared  that  the  cesspool  was  never  pointed  out  to  the  tenant,  and  that 
she  did  not  know  of  its  existence,  that  it  was  covered  by  rotten  boards, 
concealed  by  earth,  upon  which  grass  and  weeds  were  growing,  and  that 
the  landlord  had  directed  the  cover  to  be  repaired  with  old  boards  some 
time  before,  and  was  present  when  the  repairs  were  made.     Id. 

6.  Landlord  is  Liable  for  Injuries  Suffered  by  Third  Persons  Law- 

fully Using  Way,  where  he  lets  premises  abutting  upon  the  way, 
which,  from  their  condition  or  construction,  are  dangerous  to  such  per- 
sons, unless  the  tenant  has  agreed  to  put  the  premises  in  proper  repair. 
Dalay  v.  Savage,  429. 

7.  Tenant  under  Cropping  Lease  Deprives  Himself  of  All  Claim  to 

Crop  which  he  has  planted,  where,  without  fault  on  the  part  of  the 
landlord,  he  repudiates  the  agreement,  and  voluntarily  abandons  the 
premises.  In  such  case,  the  crop  becomes  a  part  of  the  land,  and  goes 
with  it.     Kiplinger  v.  Oreen,  584. 

8.  Doctrine  of  Emblements  does  not  Apply  where  the  term  of  occupancy 

of  leased  premises  is  certain  under  the  contract,  and  is  not  determined 
by  the  act  of  the  lessor,  nor  by  any  other  cause  than  the  violation  by 
the  lessee  of  the  agreement  under  which  he  holds.     Id. 

9.  Assignees  of  Lease  Holding  Undivided  Interests  thereunder  in  un- 

equal proportions,  as  tenants  in  common,  are  jointly  and  severally  liable 


Index.  947 

to  the  lessor  for  a  breach  of  a  covenant  to  repair  or  to  snrrender  posse?- 
sion.  Coiburn  v.  Goodall,  75. 
10.  Lessor  Irrevocably  Elects  to  TERjn.SATB  Lease  when  ho  brings  an 
action  of  ejectment  against  the  lessees,  or  their  assignees,  to  recover  tbo 
leased  premises.  Therefore  he  cannot  recover  for  rent  subsequently 
falling  due,  though  no  judgment  has  been  rendered  in  the  action  of  eject- 
ment.    Id. 

See  Estates  for  Lite. 

LIENS. 
Policy  of  Law  is  against  Upholdiho  Secret  Liens  and  Charges  to  the 
injury  of  innocent  purchasers  and  encumbraocers  for  value.     Palmer  t. 
ITovoard,  60. 
See  Attachments;  Judgments;  Mechanics'  Liens;  Receivers. 

MALICIOUS  PROSECUTION. 

1.  Plaintiff  cannot  Recover  in  Action  for  Malicious  Prosecution  of 

Civil  Suit,  unless  he  produces  evidence  to  prove  that  the  suit  was  in- 
stituted not  only  maliciously  but  without  probable  cause.  ClemetUt  v. 
Odorless  Excavating  Apparatus  Co. ,  409. 

2.  Judgment  of  Circuit  Court  of  United  States,  on  Proofs  Taken,  and 

after  argument  by  counsel,  awarding  the  complainant  an  injunction  to 
restrain  an  alleged  infringement  of  a  patent  right,  ought  to  be  coosid- 
cred  conclusive  as  to  the  question  of  probable  cause,  although  the  judg- 
ment was  reversed  on  appeal  to  the  supreme  court.     Id. 

MANDAMUS. 

1.  Writ  of  Mandamus  is  not  Regarded  as  Approfrl&tk  Remedy  for  the 

enforcement  of  contract  rights  of  a  private  and  personal  nature,  and 
obligations  which  rest  wholly  upon  contract,  involving  no  questions  of 
public  trust  or  official  duty.  And  the  writ  will  not  ordinarily  issue  if 
the  applicant  has  other  adequate  remedies.     Tohqf  v.  Hairs,  114. 

2.  Mandamus  will  not  Lie  to  Compel  Secretary  of  Private  Corpora- 

tion TO  Allow  the  transfer  of  stock  on  the  books  of  the  corporation.  Id, 

MARRIAGE  AND  DIVORCE. 

1.  Law  of  Marriage  as  administered  by  the  courts  is  founded  on  busin«M 

principles,  in  which  the  utmost  good  faith  is  exacto<l,  and  the  least  fraud 
made  a  subject  of  judicial  cognizance.    Piper  v.  Hoard,  789. 

2.  That  Woman  was  too   Ready  to  Marry  from  Mercenary  Mamrta 

will  not  debar  her,  nor  the  child  of  the  marriage,  from  relief  baaed  ou 
fraudulent  representations  nuulo  to  her  to  induce  her  to  contract  such 
marriage.     Id. 

8.  Under  Marriage  Settlements,  lasu*  take  their  interests  as  purchaMtn 
under  both  parents.     Id. 

i.  Evidence  of  Sexual  Intercoubsi  and  FAMILIARmB^  Prior  to  Mak- 
RIAGE,  with  person  with  whom  adultery  is  charged,  is  athniasible,  in  a 
libel  for  divorce  ou  the  ground  of  adultery,  to  explain  tbo  cbarmoter  of 
ambiguous  conduct  between  the  same  parties  after  marriage,  which  is 
relied  on  as  evidence  of  the  act  of  adultery  in  tasoe.    Brooka  T.  .drools, 

485. 

See  Estoppel  6;  Fraud  2;  Pabsmt  axd  Cbiuk 


948  Index. 

MASTER  AND  SERVANT. 

1.  To  EnrnxB  Servant  to  Recover  for  Injxjrt,  he  must  prove  negligenct 

or  omission  of  duty  on  the  part  of  the  master,  occasioning  the  injury. 
If  it  was  caused  by  hia  own  neglect  and  want  of  ordinary  care,  or  was 
the  result  of  accident,  he  cannot  recover.  In  such  cases,  negligence  is 
never  presumed  against  the  nxaster.  Wormell  v.  Maine  Central  R.  R. 
Co.,  321. 

2.  RELA'noK  OF  Master  and  Servant,  without  neglect  of  duty,  does  not 

impose  on  the  master  a  guaranty  of  the  servant's  safety,  but  that  a  ser* 
vant  of  sufficient  age  and  intelligence  to  understand  the  nature  of  the 
risks  to  which  he  is  exposed  undertakes,  for  compensation,  the  natural, 
ordinary,  and  apparent  risks  and  perils  incident  to  the  employment.    Id. 

3.  Relation  of  Master  and  Servant  requires  each  to  exercise  ordinary  and 

reasonable  care;  the  master  to  use  such  care  in  providing  and  main- 
taining suitable  means  and  instrumentalities  with  which  to  conduct  hia 
business  that  the  servant  exercising  due  care  may  be  enabled  to  perform 
his  duty  without  exposure  to  dangers  not  falling  within  the  obvious 
scope  of  his  employment.     Id. 

4.  Master  is  not  Bound  to  Fornish  Safest  Machinery,  instrumentalities, 

and  appliances  in  carrying  on  his  business;  nor  need  be  provide  the  best 
methods  for  their  operation  in  order  to  insure  responsibility  from  their 
use.  But  the  servant,  knowing  the  circumstances,  must  judge  whether 
he  will  enter  his  service,  or,  having  entered,  will  remain.  Id. 
h.  Proprietors  of  Large  Manufactctring  Establishments  are  Bound  to 
Furnish  Suitable  Place  in  which  work  may  be  performed  with  a  rea- 
sonable degree  of  safety  to  the  persona  employed,  and  without  exposure 
to  dangers  that  do  not  come  within  the  obvious  scope  of  the  employment 
in  the  business  as  usually  carried  on.   Smith  v.  Peninsular  Car  Works,  542. 

6.  Master  must  Notift  Servant  of  Special  Risks  in  the  employment  of 

which  the  latter  is  not  cognizant,  or  which  are  not  patent;  and  on  fail- 
ure of  such  notice,  the  servant  exercising  due  care  and  receiving  injury 
is  entitled  to  recover,  when  the  master  knew,  or  ought  to  have  known, 
of  such  risks.     Wormell  v.  Maine  Central  R.  R.  Co.,  321. 

7.  Proprietors  of  Manufacturing  Establlshments  should  Inform  Ser- 

vants OF  Latent  Rises,  which  the  servants,  from  ignorance  or  inexpe- 
rience, are  incapable  of  understanding  and  appreciating,  or  which  they 
would  not  be  likely  to  know,  and  of  which  the  proprietors  or  their  fore- 
men are  presumed  to  know  and  be  familiar.  Smith  v.  Peninsular  Car 
Works,  542. 

8.  Proprietors  of  Manufacturing  Establishments  will  not  Dischargb 

Themselves  from  Obligation  towards  Servants,  by  informing  the 
servants  generally  that  the  service  engaged  in  is  dangerous,  especially 
where  the  servants  are  persons  who  neither  by  experience  nor  education 
have,  or  would  be  likely  to  have,  any  knowledge  of  such  facts;  but  the 
servants  should  be  informed,  not  only  that  the  service  is  dangerous,  and 
of  the  perils  of  a  pai-ticular  place,  but  where  extraordinary  risks  are 
or  may  be  encountered,  if  known  to  the  masters,  or  should  be  known  by 
them,  the  servants  should  be  warned  of  these,  their  character  and  extent, 
so  far  as  possible.    Id. 

9.  Employer  is  not  Responsible  to  Servant  for  Injury  Received  in 

Employment  resulting  from  those  dangers  which  are  the  subject  of 
common  knowledge,  or  which  can  be  readily  seen  by  common  observa- 
tion; but  where  the  danger  to  be  avoided  requires  a  knowledge  of  Bcieii> 


Index.  949 

tific  facts,  or  is  the  result  of  well-kno^m  cbeiaical  combiDations  among 
well-educated  men,  if  known  to  the  employer,  or  should  be  known  by 
him,  the  employer  will  be  responsible  to  the  servant  for  an  injury  re- 
sulting therefrom,  if  he  neglects  to  notify  the  servant  thereof.     Id. 

10.  Negligence  or  Carelessness  on  Part  of  Workmen  in  Mancfactukino 
Establishment  is  not  Shown,  so  as  to  defeat  an  action  brought  by  on© 
of  them  against  the  employer  for  an  injury  received  in  the  employment, 
from  the  fact  that  they  whistled,  sang,  laughed,  and  talked  while  in  the 
performance  of  their  work.     Id. 

11.  Servant  cannot  be  Charged  with  Contributory  Neouokno  in  Casb 
of  Injttrt  Received  in  Emplotment,  or  be  said  to  have  assumed  all 
the  risks  and  perils,  ordinary  and  extraordinary,  incident  to  the  employ- 
ment, in  the  absence  of  evidence  showing  the  proper  notice  given  by  tha 
agent  in  charge,  or  knowledge  on  the  part  of  the  servant.     Id. 

12.  Servant  must  Prove  bt  Evidence  having  legal  weight  that  he  waa 
exercising  due  care  at  the  time  the  injury  was  received,  to  entitle  him  to 
recover.      Wormell  v.  Maine  C.  B.  B.  Co.,  321. 

13.  Where  Servant  Receives  Injdtit,  Question  of  Due  Care  on  hia  part  b 
ordinarily  for  the  jury;  but  sometimes  it  becomes  one  of  law,  whether, 
from  the  facts  and  circumstances,  the  jury  can  properly  find  in  favor  of 
such  care.     Id. 

14.  If  Servant,  at  Time  of  Recejvino  Injurt,  was  not  exercising  due  car% 
and  was  performing  dangerous  duties  outside  of  his  regular  employment, 
he  will  be  held  to  have  assumed  the  risk  incident  thereto,  and  cannot 
recover,  especially  when  he  knew  as  well  as  the  master  the  dangerooa 
nature  of  the  service  in  which  he  engaged.     Id. 

15.  Whether  Servant  Assumed  Risk  or  was  Guilty  of  Contribctobt 
Negligence  cannot  be  determined  by  a  trial  court  as  a  matter  of  law,  bat 
must  be  submitted  to  the  jury  as  a  question  of  fact,  in  a  case  where  the 
evidence  shows  that  certain  dangerous  parts  of  the  machinery  in  an  ex- 
tensive flour-mill,  which  had  been,  to  the  plaintiff's  knowledge,  formerly 
covered,  were,  at  the  time  of  the  accident  therefrom  to  him,  and  had 
been  for  several  days  prior  thereto,  uncovered  for  the  purpose  of  making 
repairs,  and  that  plaintiff  had  not  been  notified  of  the  removal  of  the 
covering,  the  character  of  his  duties  being  such  as  to  reasonably  district 
hia  attention  from  the  condition  of  the  gearing  on  any  particular  ma- 
chine, and  it  not  being  his  duty  to  look  after  the  repairs,  or  to  keep  tha 
machinery  in  order.     Craver  v.  C7iristian,  G75. 

16.  Servant  having  Equal  Knowledge  wrrn  Master  of  the  dangerooa 
character  of  the  work  upon  which  he  enters  assumet  the  risks  tbereoL 
Fitk  ▼.  Central  P.  R.  R.  Co.,  22. 

17.  Doty  of  Maoteb  to  Infant  or  MxJOB  Emfloyek  is  to  warn  and  inatrcct 
him  regarding  the  dangers  of  the  employment,  and  the  means  of  avoid- 
ing them.     Id. 

18.  Minor  Emfloyei  Peoperly  Instbuctkd  ooncernino  Dasoemb  of  hia 
employment  thereafter  stands  on  the  same  phine  with  other  aerrants, 
with  respect  to  the  risks  incident  to  the  employmout.     Id. 

19.  Boss  of  Tool-boom  Whom  Minos  Employee  is  instructed  to  obey  baa 
not,  arising  from  such  instructionB,  authority  to  direct  such  minor  to  go 
into  other  shops  of  the  same  master  to  look  for  work;  and  if  wich  minor 
employee  does  go  to  such  shop,  and  is  there  placed  in  a  daagarcms  •»• 
ployment,  without  proper  warning  or  instructions,  aad  while  ia  such 
employment  is  injured,  he  cannot  recover  therefor  from  the  master.   Id. 


960  Index. 

20.  Master  cannot  Eyadb  Duty  to  his  Servant  by  Delegating  ira 
Performance  to  another.  ^Vhoeve^  does  the  act  by  the  appointment 
or  permission  of  the  master  represents,  and  as  to  that  act  is,  the  master. 
Bualiby  v.  New  York  etc.  R.  R.  Co.,  843. 

21.  Ekplotee  of  Railroad  mat  Assume  that  Car  Delivered  to  Him  for 
use  is  safe,  and  that  the  needed  requirements  for  the  reception  of  a  load 
placed  upon  it  are  fit  for  the  purpose.    Id. 

22.  Railroad  Company  must  Prepare  its  Cars,  whether  freight  or  passen- 
ger,  for  the  use  to  which  they  are  consigned.     Id. 

^,  For  Defective  Stakes  at  Side  of  Platform  Freight-car,  Railroad 
Company  is  answerable  to  an  employee  injured  thereby,  though  the  use 
of  such  defective  stakes  may  be  attributed  to  the  negligence  of  another 
employee  or  of  a  shipper.     Id. 

24.  Railroad  Company  Delegating  to  Shippers  Duty  of  Seeing  that 
freight-cars  are  in  good  condition  and  safely  loaded  is  answerable  for 
their  negligence  to  one  of  its  employees  injured  thereby.     Id. 

25.  Railroad  Company's  Duty  to  its  Employees  requires  it  to  use  diligence 
and  care,  not  only  in  furnishing  proper  and  reasonably  safe  appliances 
and  machinery,  and  skillful  co-employees,  but  also  in  making  and  pro- 
mulgating rules,  which,  if  faithfully  observed,  will  give  reasonable  pro- 
tection to  employees.      Id. 

26.  Duty  of  Railroad  Company  to  its  Employees  requires  it  to  use  such 
care  in  providing  tracks  and  bridges  that  it  will  be  reasonably  safe  for  its 
employees  to  discharge  the  duties  they  are  called  on  to  perform.  St.  Louia 
etc.  R.  R.  Co.  V.  Irwin,  266. 

27.  Railroad  Company,  for  Injuries  Caused  by  Bridge,  the  covering  of 
which  is  so  low  as  to  strike  an  employee  in  the  discharge  of  his  duties, 
is  answerable  to  him  in  damages,  if  he  had  no  knowledge  of  its  dangerous 
nature.     Id. 

28.  Employees  of  Railroad  Company  should  not  bb  Subjected  to  un- 
necessary perils  from  structures  over  and  along  the  track  which  might 
easily  be  changed  or  removed.     Id. 

29.  Employee  of  Railroad  Company  Assumes  Ordinary  risks  incident  to 
the  service;  and  if  he  enters  or  continues  in  such  service  with  a  knowledge 
of  danger,  and  without  objection,  he  must  abide  the  consequence.     Id. 

80.  Employee  of  Railroad  Company  is  not  Required  to  Know  All  De- 
fects AND  Obstructions  of  the  road  on  which  he  is  employed.    Id. 

31.  Whether  Conductor  of  Train  Uses  Ordinary  Care  in  standing  on  a 
caboose,  for  the  purpose  of  giving  necessary  signals,  while  his  train  is 
passing  under  a  bridge,  is  a  mixed  question  of  law  and  fact.     Id. 

82.  Employee  of  Railroad  Company  does  noi'  Assume  Risk  of  Insuffi- 
ciency OF  Switch-rail  to  support  the  weight  of  rolling  stock  used  on 
the  road,  where  it  does  not  appear  that  he  knew  of  the  defective  condi- 
tion of  the  switch,  the  liability  of  the  rail  to  break,  or  the  special  dan- 
ger from  that  cause  likely  to  arise  from  running  his  engines  over  it. 
Clapp  V.  Minneapolia  and  St.  Louis  R.  R.  Co.,  629. 

83.  Master  is  not  Answerable  to  Servant  for  injuries  inflicted  on  him 
by  negligence  of  another  servant  in  same  common  employment,  and  not 
traceable  to  personal  negligence  of  master.  Fisi  v.  Central  Paqfic  R.  R. 
Co.,2i- 

84.  Servant  Assumes  Ordinary  Risks  of  employment,  including  risk  of 
injnry,  from  neglect  of  fellow-servants.     Id. 


Index.  951 

35.  Ordke  o»  Employee  Dikectino  MnroB  Emplotee  to  undertake  a  dan- 
gerous task  without  proper  advice  as  to  such  danger,  if  it  be  negligence, 
is  the  negligence  of  the  fellow-servant,  for  which  no  recovery  can  be  had 
against  the  master.     Id, 

36.  LIiNOR  OR  Lnfant  Employee  cannot  Recover  fob  Injuries  caused  by 
negligence  of  a  fellow-servant.     Id. 

37.  Where  Negligence  of  Master,  Combined  wrru  That  of  his  Servant, 
Produces  injury  to  a  fellow-servant,  the  latter  may  recover  damages  of 
the  master.     /(/. 

38.  Train  Dispatcher  Who  has  CJoNTBOLof  the  movement  of  trains  and  en. 
gines,  and  to  whose  orders  conductors  and  engineers  are  subject,  is  not 
a  fellow-servant  with  those  actually  engaged  in  operating  and  moving 
trains,  but  is  the  representative  of  the  company.  SmUh  v.  Wabaeh  etc 
B'y  Co.,  729. 

39.  Traiji  Dispatcher  being  Representative  of  the  company,  the  latter  is 
liable  for  his  negligence  causing  injury  to  an  employee  of  the  company, 
acting  under  his  orders,  whether  verbal  or  written,  as  required  by  tb« 
rules  of  the  company.     Id. 

40.  Train  Dispatcher  Who,  as  Representative  of  Company,  determines 
that  he  cannot  give  written  orders,  as  required  by  the  rules,  but  gives 
verbal  orders  to  meet  an  emergency,  such  orders  are  the  act  of  tho 
company;  and  if  its  employee,  acting  under  such  orders,  is  injured 
through  the  negligence  of  the  train  dispatcher,  the  company  is  liable.    /</, 

41.  Pabty  is  not  Relieved  from  Liability  fob  Injuries  Resulting  from 
Fall  of  Wall,  on  the  ground  that  it  was  constructed  by  an  inJepen* 
dent  contractor,  if  the  defect  in  the  wall  arose  from  the  plans  and  specifi- 
cations adopted  by  such  party,  and  not  from  negligence  of  the  contractor 
in  carrying  out  such  plans  and  specifications.  Laneatter  v.  Connecticut  etc 
Ins.  Co.,  739. 

42.  Provision  is  Buildino  Contract  that  the  work  shall  be  dons  in  a  good 
and  workmanlike  manner  relates  to  the  things  specified  to  be  done,  and 
does  not  impose  on  the  builder  tho  duty  of  doing  acts  or  taking  precaa* 
tions  which  ought  to  have  been,  but  were  not,  provided  for  in  the  plans 
and  specifications.     Id. 

MECHANICS*  UENS. 

1.  MiNNisoTA  Statute  does  not  Authorize  Mechanic's  Lixk  fob  Filuko 

IN  and  Gbadino  Earth  about  buildings  already  erected,  where  th« 
work  does  not  enter  into  or  contributo  to  the  erection,  alteration,  or 
repair  of  any  building  or  structure  upon  the  land.    Pratt  v.  Duncan,  097. 

2.  One  Who  Furnishes  Material  for  Building  Erected  o!«  Village 

Lot,  under  a  contract  with  i>artiea  in  pouession  of  the  lot,  acquires 
a  meclianic's  lien  on  the  building  and  lot,  althoagh  tho  title  to  tho  lot 
was,  at  the  date  of  the  contract,  in  a  third  person,  who  conveyed  th« 
same,  after  a  part  of  the  material  was  famished,  to  one  of  the  partie* 
to  the  contract,  to  whom  the  other  party  at  the  same  time  transferrwl  his 
interest.  The  acquisition  of  the  title  united  in  the  party  acquiring  it  ihs 
ownership  of  the  house  and  lot,  and  the  lien  rests  ujwn  bis  interest  in 
both,  and  he  is  not  permitted  to  defeat  it  by  setting  up  title  in  a  UiirJ 
person  previous  to  that  date.  Colnum  r.  Ooodmow,  632. 
S.  Claim  of  Lien  nop  Arncsrso  bt  Seal  of  OrncKE  »tfOR>  Whom  It 
WAS  SwoBif  to,  within  the  statutory  time,  is  insoffleient  to  preserve  the 
lien.     Id, 


952  Index. 

4.  Certificate  Filed  ttnder  Mechanic's  Liek  Law,  which  requires  the  naiD» 
of  the  owner  or  owners  of  the  property,  if  known,  to  be  stated,  is  good, 
if  the  petitioner,  not  knowing  the  name  of  the  owner,  sets  forth  that 
the  land  is  owned,  to  the  best  of  his  knowledge  and  belief,  by  a  certain- 
named  person.    McPItee  v.  Litchjield,  482. 

See  Husband  and  Wife,  1. 

MORTGAGES. 

1.  MoBTOAOES.  —  The  provisions  of  the  law  concerning  mortgages  cannot  be 

evaded  by  mere  shuffling  of  words.     Palmer  v.  Howard,  60. 

2.  Insttbumsnt  is  Mobtqage,  no  matter  what  the  parties  may  characterize  it, 

where  it  clearly  appears  therefrom  that  for  all  practical  purposes  the 
ownership  of  the  property  is  intended  to  be  transferred  and  a  lien  for 
the  purchase  price  reserved  to  the  seller.     Id. 

8.  Instrument  is  Mobtqage,  and  not  Exbcutobt  Contract  of  Sale,  wher» 

it  recites  the  loan  of  certain  articles,  that  if  the  price  set  against  them 
is  paid  they  shall  belong  to  the  borrower,  otherwise  to  the  lender;  that 
notes  or  drafts  given  are  not  to  be  considered  payments  till  paid;  that 
the  borrower  agrees  to  pay  the  prices  named;  that  the  property  is  not  ta 
be  removed,  from  a  designated  lot  without  the  assent  of  the  lender;  and 
that  if  the  borrower  fail  to  meet  any  of  the  payments,  the  lender  may 
take  the  property  and  dispose  of  it,  rendering  to  the  borrower  all  snr* 
plus  after  paying  the  price  agreed  upon,  etc.    Id. 

4.  Surety  mat,  after  Maturity  of  Debt,  for  the  payment  of  which  he  i» 
responsible,  replevy  goods  mortgaged  to  secure  him  as  surety,  and  may 
foreclose  such  mortgage,  although  he  has  not  actually  paid  such  debt. 
Bates  V.  Wiggin,  234. 

6.  Oral  Mortgage Verbal  agreement  by  one  with  his  surety  that  prop- 
erty purchased  with  money  raised  by  note  signed  by  surety  shall  be- 
come the  property  of  such  surety  until  such  note  is  paid,  is,  in  effect,  an 
oral  mortgage.    Id. 

6.  Oral  Mortgage  of  Chattels  not  Accobipanted  by  their  Deuveby  i» 

valid  as  between  the  parties.    Id. 

7.  Purchase-money  Mortgage,  Executed  Contempobaneously  with  I>eei> 

of  Purchase,  whether  to  the  vendor  or  to  a  third  person  who  advanced 
the  purchase-money  paid  to  the  vendor,  takes  precedence  over  the  lien 
of  a  prior  judgment  against  the  mortgagor.    Stewart  v.  Smitli,  651. 

3.  Deed  and  Mortgage  need  not  be  Executed  at  Same  Moment,  nor  even 

on  the  same  day,  to  make  them  contemporaneous,  provided  they  were 
parts  of  one  continuous  transaction,  and  so  intended  to  be,  so  that  th» 
two  instruments  should  be  given  contemporaneous  operation  in  order  to 
promote  the  intent  of  the  parties.     Id. 

9.  Mortgage,  Conveyance,  and  Defeasance  Executed  at  Same  Time,  and 

as  parts  of  the  same  transaction,  though  upon  different  pieces  of  paper,^ 
constitute  in  law  but  one  instrument,  and  that  instrument  is  a  mort- 
gage.    Bunker  v.  Barron,  282. 

10.  Mortgagor's  Legal  Title  is  not  Divested  by  failure  to  comply  with 
the  conditions  of  the  mortgage,  nor  by  surrender  of  possession  to  the 
mortgagee.    Berlack  v.  Halle,  185. 

IL  Grantee  of  Mobtgagob  is  Necessaby  Party  to  foreclosure  of  a  mort- 
gage. A  decree  to  which  he  is  not  a  party  is  inoperative  as  against 
him,  and  a  purchaser  thereunder  cannot  recover  in  ejectment  against 
such  grantee  or  his  assigns.     Id. 


Index.  953 

12.  Oedinart  Mortgage  is  not  Evidknck  o»  Right  or  Possession  in  th« 
mortgagee.    Id. 

13.  Mortgage  is  Discharged  only  by  Payment  or  Release,  and  not  by  « 
change  in  or  renewal  of  the  note  or  debt  which  the  mortgage  was  given 
to  secure.     Bunker  v.  Barron,  282. 

14.  Kelea.se  by  Mortgagee  of  Mortgage  Which  He  Holds  in  Trust  ?or 
Another,  before  it  becomes  due,  is  ia  contravention  of  his  trust,  and 
constitutes  no  obstacle  to  enforcing  such  mortgage  against  subsequent 
bona  fide  purchasers.  They  are  bound  to  know  that  he  had  no  authority 
to  grant  such  release.     McPhermn  v.  Rollins,  826. 

See  Agbmcy,  2;  Deeds,  13;  Fixtures;  Fraudulent  CioNYEYAiicis,  1;  Hoia> 

STEADS,  23,  24;  TAXATION. 

MUNICIPAL  CORPORATIONS. 

1.  Provision  in  City  Charter  that  "Common  Council  shall  be  Judob 

or  Election  and  Qualifications  op  its  Own  Members,  and  shall  have 
the  power  to  determine  contested  elections,"  is  conclusive,  and  not  sub- 
ject to  review.     People  v.  Jlarsltaw,  498. 

2.  Mayor  of  City  is  Member  of  Council,  within  the  meaning  of  a  provision 

in  its  charter  that  "  the  common  council  shall  be  the  judge  of  the  elec- 
tion and  qualifications  of  its  own  members,  and  shall  have  the  power  to 
determine  contested  elections,"  when  the  charter  also  provides  that 
"the  mayor,  recorder,  and  aldermen,  when  assembled  together  and  or- 
ganized, shall  constitute  the  common  council  of  the  city."    /</. 

8.  Legislature  has  Power  to  Leave  CrriEji  to  Determine  Title  of  their 
Own  Officers  without  further  review;  for  the  remedy  by  information,  as 
well  as  by  quo  warranto,  is  not  a  matter  of  right,  but  of  discretion,  and 
may  be  withheld  by  the  legislature.     Id. 

4.  Town  is  not  Liable  for  Nuisance  when  the  acts  complained  of  are  not 
within  the  scope  of  its  corporate  powers,  nor  performed  by  its  officers  in 
the  execution  of  any  corporate  duty  imposed  upon  them.  Stele  v.  Inhab- 
Uanta  of  Deering,  314. 

6.  Town  Independent  of  Statute  has  No  Corporate  Power  to  dig  ditches 

across  another's  land.  Such  act  is  ultra  vires,  and  no  liability  is  created 
on  the  part  of  the  town  when  such  acts  are  authorized  and  directed  by  a 
majority  of  the  corporate  officers.  Id. 
ft.  City  is  Llable  for  Collecting  and  Oathbrino  up  Surface  Water  by 
artificial  means,  such  as  sewers  and  drains,  and  casting  it  upon  the 
premises  of  another  in  increased  and  injurious  quantities.  Pge  v.  Ctty  qf 
Mankato,  671. 

7.  When  Land  has  been  Lawfully  Taken  for  Street,  legislative  and 

municipal  authority  may  authorize  the  construction  and  operation  of  a 
street  railway  upon  it,  no  matter  what  the  motor,  without  providing  for 
additional  compensation  to  the  land-owner.  Briggt  v.  LewitUm  etc  R.  R. 
Co.,  316. 

NAMES. 

OMI88ION  OF  Initial  Lnm  or  Defendant's  Middle  Name  in  prooMd- 
ings  against  him  in  a  jostice's  coart  is  immaterial.     AlUton  v.  Thamntt 

80. 

NEOUGENCE. 

1.  LBOISLATiraB  MAY  DlTABT  FROM  COMMON-LAW  PRIXCirLI,  that  foT  a  law- 
ful, reasonable,  and  carefal  use  of  property  the  owner  cannot  be  made 


954  Index. 

liable,  where  protection  to  persons  or  property  may  require  such  depart* 
ure.     Oresaellv.  Houaatonic  R.  R.  Co.,  138. 

2.  CoNSTrrtrnoNAL  Law.  —  One  using  extrahazardous  materials  or  instrumen* 

talities  may  be  made  to  bear  the  risk  and  pay  the  loss  thereby  occasioned 
to  the  property  of  another,  if  there  is  no  fault  on  the  part  of  the  latter, 
even  though  negligence  on  the  part  of  the  former  cannot  be  proved.    Id. 

3.  Owner  op  Lands  is  Liable  in  Damages  to  One  Who,  Using  Due  Cabx, 

Comes  thereon,  at  the  invitation  or  inducement,  express  or  implied,  of 
such  owner,  on  any  business  to  be  transacted  with  or  permitted  by  him, 
for  injuries  occasioned  by  the  unsafe  condition  of  the  premises,  known 
to  him,  and  sufiTered  negligently  to  exist,  and  of  which  tie  injured  party 
has  no  knowledge.     Donaldson  v.  Wilson,  487. 

4.  Instantaneous  Death  and  Absence  of  Conscious  Sutfeeino  after 

Fatal  Injury  are  Distinct,  and  therefore  a  ruling  that  there  was  no 
evidence  of  conscious  suffering  by  the  intestate,  and  consequently  that 
the  plaintiff  was  only  entitled  to  recover  nominal  damages,  is  correct, 
and  not  inconsistent  with  a  ruling  that  there  was  evidence  to  warrant 
the  jury  in  finding  that  a  cause  of  action  accrued  to  the  intestate  in  hia 
lifetime,  and  survived  to  his  personal  representative,  where,  in  an  action 
by  an  administratrix  to  recover  damages  sustained  by  the  intestate  in 
his  lifetime  by  the  breaking  of  a  machine  upon  which  he  was  employed 
by  the  defendant,  it  appeared  that  the  intestate  was  found  about  ten 
minutes  after  the  accident,  with  his  body  crushed  and  his  bowels  dis- 
rupted, and  that,  although  breathing,  he  was  unconscious,  and  died 
almost  immediately  in  that  state.  Muklwihey  v.  Washburn  Car  Wheel 
Co.,  458. 
6.  Parents  or  Brother  of  Child  cannot  be  Said  to  have  been  Negli- 
gent AS  Matter  of  Law,  in  an  action  against  a  town  to  recover  dam- 
ages for  the  death  of  the  child  caused  by  a  defect  in  a  street,  where  tho 
child,  one  year  and  ten  months  old,  was  sent  by  his  mother  into  the 
street  for  air  and  exercise,  in  charge  of  his  brother  eight  years  old,  who 
was  accustomed  to  take  him  out,  and  while  the  children  were  standing 
in  the  street  watching  other  boys  at  play,  the  younger  child,  unnoticed 
by  the  elder,  started  across  the  street,  and  upon  being  seen,  called  at,  and 
run  after  by  the  elder,  ran,  fell,  and  rolled  into  a  gutter,  which  had  been 
filled  with  water  for  some  time  by  reason  of  an  obstructed  culvert,  the 
condition  of  which  was  known  to  the  parents  and  the  elder  brother,  re- 
ceiving injuries  which  caused  his  death.  Blisa  v.  Inhabitants  of  South 
Hadley,  441. 

6.  Children  Sent  into  Street  by  Parents  for  Air  and  Exercise  may  bk 

Properly  Found  to  be  Travelers  by  the  jury,  in  an  action  against  a 
town  to  recover  damages  for  the  death  of  one  of  them  caused  by  a  defect 
in  the  street,  although  they  stopped  for  a  few  minutes  to  watch  other 
boys  at  play.     Id. 

7.  Owner  of  Saw-mill  is  not  Guilty  of  Contributory  Negligence,  de- 

feating his  right  to  recover  for  loss  by  fire  from  the  locomotive-engine 
of  a  private  railroad  which  had  been  constructed  after  the  mill  was  built, 
from  the  fact  that  he  allowed  combustible  material  to  accumulate  around 
the  mill,  in  near  proximity  to  the  railroad;  but  he  had  the  right  to  use 
such  material  to  fill  up  the  waste  and  low  places  about  the  miU,  just  as 
he  was  accustomed  to  do  before  the  railroad  was  built,  and  was  not 
obliged  to  guard  his  premises  to  relieve  the  owner  of  the  railroad  from 
liability  for  his  negligent  acts.    Kendrick  v.  Totcle,  626. 


Index.  955 

8.  Slight  Contbibutory  Negligence  not  clearly  shown  to  have  contributed 

to  plaintiflTs  injury  will  not  defeat  his  recovery  when  the  employees  of 
the  defendant  were  grossly  negligent.  Wichita  etc.  R.  R.  Co.  v.  Davia, 
275. 

9.  Fact  that  Act  of  Thied  Person  mat  have  Contribcted  to  the  final 

catastrophe  will  not  exonerate  a  defendant  sued  for  injuries  resulting 
from  an  act  which  is  unlawful,  or  is  so  hazardous  as  to  be  in  the  nature 
of  a  nuisance  on  account  of  the  occasion  for  accident  and  injury  which 
it  continuously  presents  to  innocent  persons.     Barry  v.  TerldldaeTi,  65. 
See  AoENCT,  1;  Innkeepers;  Master  and  Servant. 

NEGOTIABLE  INSTRUMENTS. 

1.  Presumption  from  Delivery  to  Another  of  Order  on  Third  Pkbsor 

for  the  payment  of  money  to  the  person  to  whom  the  order  is  given,  is, 
that  the  drawee  is  indebted  to  the  drawer  in  the  snm  mentioned  in  the 
order.     Manclieater  v.  Braedner,  828. 

2.  Possession  of  Note  by  Payee  is  Prima  Facie  Evidence  that  It  had 

BEEN  Delivered,  but  the  fact  may  be  shown  to  be  otherwise  by  parol 
evidence.  Such  evidence  does  not  contradict  the  note,  or  seek  to  vary 
its  terms,  but  merely  goes  to  the  point  of  its  non-delivery.  McFar- 
land  V.  Sikea,  111. 

8.  Parol  Evidence  is  Admissible,  in  Action  on  Promissory  Note,  to  show 
that  it  was  delivered  by  the  defendant  to  the  plaintiff  on  condition  that 
it  should  be  returned  to  the  defendant  on  a  certain  day,  if  demanded, 
and  that  it  was  so  demanded,  but  the  plaintiff  refused  to  surrender  it.  Id. 

4.  Bona  Fide  Holder  for  Value  of  Bill  of  Exchange  before  Accept- 
ance MAY  Enforce  It  against  a  subsequent  acceptor,  although  no  new 
consideration  moves  from  him  to  the  drawee.  The  rights  of  the  holder 
of  a  bill  of  exchange  are  the  same,  whether  they  were  acquired  in  an- 
ticipation of  or  subsequent  to  the  acceptance.  Credit  Co.  v.  Howe  Ma- 
chine Co.,  123. 

6.  Acceptor  may  Pay  Non-negotiablb  Draft  to  Payee  without  delivery 
of  the  draft,  if  acceptor  has  not  been  notified  of  transfer  of  the  draft,  and 
such  payment  is  a  good  defense  to  an  action  by  any  such  transferee 
against  the  acceptor.     Johnston  v.  Allen,  180. 

6.  Burden  of  Proof  of  Notice  of  transfer  of  non-negotiable  draft  before 

its  payment  lies  on  the  plaintiff.    Id. 

7.  Payment  of  Non-negotiable  Draft  after  Notice  that  the  payee  had 

parted  with  the  possession  thereof,  either  by  transferring  it  absolutely 
or  as  collateral  security,  is  not  a  good  defense.    Id. 

8.  Onb  Who  ha.s  Delivered  Draft  as  Collateral  Security  has  no  right 

sabaeqnently  to  forbid  or  to  attach  any  conditions  to  its  payment.   Id. 

9.  C0N.SIDERAT10.V  OF  Transfer  of  Dratt  is  not  Proper  Subject  of  In- 

quiry in  an  action  by  the  transferee  against  the  acceptor.     Id. 

10.  In  Cask  of  Protest  of  Note,  Commercial  n.HAOK  only  Requiris 
Notice  to  bb  Given  to  Immediate  Indorser,  by  the  indorsee  making 
demand  of  pa>  ment.  It  is  not  necessary  for  the  notary  to  take  any 
notice  of  the  residence  of  the  maker  being  upon  the  note,  or  to  make 
any  inquiry  as  to  the  residence  of  any  of  the  indorsers,  except  the  last. 
Such  a  rule  would  greatly  embarrass  and  obstruct  bosineai,  and  is  not 
required  by  the  authorities.      Wood  v.  CaOaghan,  597. 

11.  Notice  of  Dishonor  of  Notb  is  sufficient  if  addreued  to  the  indorsers 
at  their  former  place  of  bosinees,  where  their  afiaira  were  being  settled 


956  Index. 

by  a  trustee  to  whom  they  had  assigned  for  the  benefit  of  their  creditonL. 
Casco  National  Bank  v.  Sha^o,  319. 

12.  NoTiCB  OF  DisnoNOR  OF  Note  I3  Pkoperlt  Mailed  if  dropped  into  a 
street  letter-box  put  up  by  the  post-office  department.  It  is  as  truly 
mailed  as  if  deposited  in  a  letter-box  within  the  post-office  building.    Jd. 

13.  In  Action  by  Holder  against  Indorser  of  Note,  the  latter  is  not  en- 
titled to  the  benefit  of  payments  made  by  a  third  party  under  an  agree- 
ment with  the  holder  that  the  note  should  be  assigned  to  him.  The 
money  so  paid  is  not  a  payment  on  the  note.     Id. 

14.  CoMPOUNDiNO  Felokt.  —  The  assignment  of  a  draft  is  valid  and  enforce* 
able  against  its  acceptor,  though  such  assignment  may  have  been  mad» 
to  compound  a  felony.     Johnston  v.  Allen,  180. 

15.  Agreement  by  Holder  of  Single  Bill  to  Relinquish  Claim  to  Inter- 
est which  had  accrued  thereon,  and  to  accept  the  payment  of  the  prin- 
cipal in  full  satisfaction  of  the  debt,  is  without  consideratioa,  and  th© 
debt  is  not  discharged.    Enimittshurg  R.  R.  Co.  v.  Donoghxie,  396. 

16.  In  Action  to  Recover  Interest  Due  on  Single  Bill,  plea  that  defend- 
ant owed  plaintiflF  the  single  bill  and  another  debt,  the  amount  of  which 
was  in  dispute,  and  that  in  performance  of  an  agreement  with  the  plain- 
tiff the  defendant  paid  the  face  of  the  bill,  and  also  the  amount  of  the 
other  debt  as  claimed  by  the  plaintiff,  without  further  dispute  or  delay, 
and  that  these  payments  were  accepted  by  the  plaintiff  in  full  settlement 
of  his  claims,  is  not  a  sufficient  defense  to  the  action.    Id. 

17.  Partial  Payment  by  Guarantor  of  Note  does  not  Discharge  Maker 
PRO  Tanto,  if  such  payment  be  made  upon  the  agreement  that  the 
payee  shall  hold  the  note  as  security  to  the  guarantor  for  the  amount 
paid,  as  well  as  for  the  balance  remaining  due  the  payee.  Granite  Nat. 
Bank  v.  Fitch,  484. 

18.  New  Note  for  Balance  Dub  on  Original  One  is  not  to  bb  Treated 
AS  Payment  thereof,  when  the  new  note  was  sent  by  the  makers  to 
the  holder  of  the  original,  but  was  never  discounted  or  paid,  or  accepted 
in  discharge  of  the  original.    Id. 

See  Corporations,  2-5;  Payment. 

NEW  TRIAL. 
Pact  that  Testimony  of  Witness  Differs  in  Some  Important  Particu- 
lars from  that  given  by  him  on  a  former  trial  of  the  case  is  not  sufficient 
to  justify  the  appellate  court  in  setting  aside  a  verdict  resting  upon  such 
testimony,  which  the  trial  court  has  refused  to  disturb.  SmiQi  v.  WiU 
son,  662. 

NOTICE. 

1.  Actual  Notice  may  be  either  Express  or  Implied.    Knapp  v.  Bailey, 

295. 

2.  Implied  Notice  is  Imputed  to  Party  shown  to  be  conscious  of  having 

means  of  knowledge  which  he  does  not  use,  as  where  he  chooses  to  remain 
voluntarily  ignorant,  or  is  grossly  negligent  in  not  pursuing  inquiries 
suggested  by  known  facts.     Id. 

3.  Actual  Notice  may  be  Proved  by  Direct  Evidence,  or  inferred  from 

circumstances.     Id. 

4.  Onb  is  Chargeable  with  Actual  Notice  of  Facts,  if  he  has  knowledge 

of  such  facts  as  would  lead  a  fair  and  prudent  man  to  make  further  in- 
quiries, and  if  such  inquiries,  if  pursued  with  ordinary  diligence,  would 


Index.  957 

have  given  him  knowledge  of  the  facts,  with  notice  of  which  he  is  sought 
to  be  charged.     Id. 
8e«  AoBNOT,  3;    Bona  Fids  PmtCHASEAs;  Executions;  Neootiablb  In< 

STRUMENTS. 

NUISANCE. 

1.  Nuisance. — The  issuing  of  soot  from  a  smoke-stack  may  be  enjoined, 

where  it  constitutes  a  disagreeable  nuisance  in  a  populous  city.  SulUvan 
V.  Royer,  51. 

2.  License  to  Maintain  Nukance,  if  granted  by  a  board  of  supervisors,  will 

not  be  permitted  to  snbatantiaUy  impair  the  rights  of  property  holders. 
Id. 

3.  Nuisance.  — Purchaser  of  reversionary  interest  in  real  estate  upon  which  a 

nuisance  exists,  and  of  which  he  has  full  knowledge,  and  who  thereafter 
receives  the  rents  thereof  from  the  tenant  in  possession,  is  answerable 
for  damages  arising  from  such  nuisance  subsequent  to  his  purchase. 
Pierce  v.  Oerman  etc.  Savmga  Sodety,  45. 

4.  Abatement  of  Nuisance  is  accomplished  in  equity  by  an  injunction, 

adapted  to  the  facts  of  the  case.     Sullivan  v.  Royer,  51 . 

5.  Prater  of  Couflaint  for  the  abatement  of  a  nuisance  warrants  a  decree 

for  an  injunction  against  the  continuance  of  such  nuisance.     Id. 

6.  Fact  that  Act  of  Third  Person  may  have  Contributed  to  the  final 

catastrophe  will  not  exonerate  a  defendant  sued  for  injuries  resulting 
from  an  act  which  b  unlawful,  or  is  so  hazardous  as  to  be  in  the  nature 
of  a  nuisance  on  account  of  the  occasion  for  accident  and  injury  which 
it  continuously  presents  to  innocent  persons.     Barry  v.  TerhUdaen,  65. 
See  Highways;  Municipal  Corporations. 

OFFICE  AND  OFFICERS. 

BiAomRATa  IS  Judicial  Officer  having  summary  jurisdiction  in  matters 
of  criminal  or  quasi  criminal  nature.  Justices  of  the  peace,  police  jus* 
tioes,  and  American  consuls  in  foreign  ports  are  magistrates.  KurU  v. 
State,  173. 

OLEOMARGARINE. 
See  Constitutional  Law,  14. 

PARENT  AND  CHILD. 

1.  AiTKE  DrvoBCE  A  VINCULO  DECREED  WiFB  for  husband's  "  desertion  and 
failure  to  support,"  without  provision  for  alimony  or  custody  of  children, 
the  htuband  is  still  liable  for  the  necessary  support  of  the  children  of  the 
nurriage  during  their  minority.     Oilley  v.  Oilley,  307. 

t.  During  his  Lifetime  Father  is  Entitled  to  the  services  and  earnings, 
and  liable  for  the  support  of  his  minor  children,  independent  of  statute 
or  decree;  but  during  such  period  tlio  wife  is  not  entitled  to  the  services 
of,  nor  is  she  bound  to  support,  such  children.     Id. 

8.  Decree  of  Divorce,  wfthout  Provision  for  Custody  of  Children  of 
the  marriage,  does  not  affect  the  parental  relation  between  the  parties 
and  their  children.  The  husband  is  still  liable  for  their  support  during 
minority.    Id. 

See  Marriage  and  Divorce;  Wills,  7. 


958  Index. 

PARTITION. 

1.  Courts  op  Equity  have  Exclusive  JcrRisDicrioN  of  Surra  for  Pabtitiom 

OF  Personal  Propektt,  even  though  the  complainant's  title  is  denied  by 
the  defendant.     Godfrey  v.  Wlute,  537. 

2.  Accounting  is  Prerequisite  to  Suit  for  Partition  of  Personal  Prop- 

erty only  where  a  partnership  relation  exists  between  the  parties  as  to 
the  property  sought  to  be  partitioned,  or  there  is  some  agreement,  ex- 
press or  implied,  between  them  that  an  accounting  shall  be  had  before 
such  division.    Id. 

PARTNERSHIP. 
Is  Suit  on  Contract  wmi  Partnership,  It  must  Appear  that  All 
Who  Sue  were  Partners  at  the  time  of  making  the  contract.  One 
who  has  been  subsequently  admitted  as  a  partner  cannot  join  in  the  ac- 
tion, although  it  was  agreed,  as  between  the  partners  themselves,  that 
he  should  become  equally  interested  with  the  others  in  all  the  existing 
property  and  rights  of  the  firm,  unless  there  has  been,  after  the  accession 
of  the  incoming  partner,  a  new  and  binding  promise  to  pay  to  the  firm 
as  newly  constituted.  And  this  principle  applies  with  great  strictness 
where  the  contract  is  by  specialty.  Firemen's  Ina.  Co.  v.  FloaSy  398. 
See  Evidence,  7;  Exemptions,  2,  3,  4;  Infancy;  Statute  of  Frauds. 

PAYMENT. 

1.  Payment  is  Presumed  Prima  Facie  from  the  giving  of  a  negotiable  note 

for  a  simple  contract  debt.  This  presumption  may  be  rebutted  by  any 
competent  evidence  showing  that  the  intention  of  the  parties  was  not  to 
treat  such  note  as  a  payment.     Bunker  v.  Barron,  282. 

2.  Payment  is  not  Presumed  from  taking  a  negotiable  note  for  an  antece« 

dent  debt,  when  such  debt  is  secured  by  a  mortgage  or  other  security. 
Id. 
8.  Holder  of  Several  Unpaid  Notes,  Some  Secured  and  Others  Unse- 
cured, MAY,  in  Absence  of  Any  Agreement  or  direction  as  to  the  ap- 
plication of  payment,  apply  the  money  exclusively  to  the  payment  of 
any  one  of  the  notes,  and  is  not  bound  to  a  ^o  rata  application  of  it. 
Wood  v.  Callaghan,  597. 

See  Negotiable  Instruments,  15-18. 

PENSIONS. 

1.  Charge  beyond  Ten  Dollars  for  Services  in  Obtaining  Pension  is, 

under  Laws  of  United  States,  against  Public  Policy,  and  cannot  be 
sustained;  and  the  money  taken  beyond  the  amount  allowed  for  such 
services  may  be  recovered  back  by  the  pensioner  as  money  received  for 
nis  use.     Hall  v.  Kimmer,  575. 

2.  Federal  Statute  Limiting  Feb  Recoverable  for  Obtaining  Pension 

IS  Intended  for  protection  of  the  soldier  and  his  family  from  unreasonable 
and  unjust  exactions  on  the  part  of  agents  who  assume  to  act  in  his  in- 
terest in  collecting  his  pension,  and  should  be  applied  by  the  courts, 
when  invoked,  in  such  a  manner  as  to  afford  the  protection  intended.   Id, 

PHYSICIANS. 
It  is  not  Competent  to  Allow  Jury  to  Determine  for  Itself  whether 
physician's  course  has  been  proper  or  improper  in  the  treatment  of  a 


Index.  959 

fractured  limb;  and  it  is  not  error  to  refuse  the  jnry  permission  to  in- 
spect the  limb  for  that  purpose.     Carstena  v.  Ilanaelman,  606. 

PLEADING  AND  PRACTICE. 

1.  To  Determine  whether  Ojte  is  Party  in  Representativts  Capacitt, 

the  averments  and  scope  of  the  complaint  must  be  considered.  Adams 
V.  Re  Qua,  191. 

2.  Same  Cause  of  Action  mat  be  Stated  in  Different  Countsj  in  which 

case,  there  need  be  but  one  finding  or  verdict.  A  nominal  verdict  for 
plaintiff  on  one  count,  and  a  substantial  verdict  for  him  on  the  other, 
shows  that  the  jurors  intended  to  award  damages  under  the  latter  only; 
and  the  judgment  cannot  be  arrested  on  the  ground  that  there  are  two 
verdicts  for  the  same  cause  of  action.  Lancaaler  v.  Connecticut  Mutual 
Life  Ina.  Co.,  739. 

3.  Where  Bad  Plea  is  Filed,  without  Notice  to  Plaintiff  of  rra  Fil- 

ing, Better  Pr.\ctice  is  to  move  to  strike  it  from  the  files;  but  the  ser- 
vice of  process  being  good,  the  action  of  the  plaintiff  in  proceeding  to 
judgment  without  noticing  the  plea  is  a  mere  irregularity,  harmless  to 
the  defendant,  and  does  not  affect  the  jurisdiction  of  the  court.  Sluckle 
etc.  Iron  Co.  v.  Construction  Co.,  571. 

4.  Forthwith,  when  Applied  to  Performance  of  Act,  signifies  as  soon  as, 

by  reasonable  exertion,  it  may  be  performed.  It  also  sometimes  means 
within  a  reasonable  time,  or  with  all  reasonable  dispatch;  and  when  a 
defendant  is  directed  to  plead  forthwith,  he  must  plead  within  twenty- 
four  hours.  Anderson  v.  Goff,  34. 
6.  Continuance  of  Publication  of  Summons  beyond  the  time  required  by 
the  order  of  the  court  does  not  extend  the  time  in  which  defendant  ia 
required  to  answer.     Id. 

6.  Equitable  Plea  in  Common-law  Action,  disclosing  only  facts  which 

would  constitute  a  defense  at  common  law,  will  be  stricken  out  on 
motion.     Johnston  v.  Allen,  180. 

7.  Request  by  Defendant  to  Continue  Action  until  the  termination  of 

insolvency  proceedings  against  him  is  discretionary  with  the  court,  and 
cannot  be  claimed  as  matter  of  right.  It  will  only  be  granted  when 
justice  will  thereby  be  promoted.    Caaco  National  Bank  v.  Sliaw,  319. 

8.  Error  cannot  be  Assigned  for  Refusal  to  Give  Request  to  Charge, 

where,  although  it  was  not  given  in  the  language  used,  it  was  given  in 
substance.     Kendrick  v.  Towle,  526. 

••   iNSTRUCnONS  NOT  SUFFICIENTLY  DeFINTTK,  AND  CALCULATED  TO  MISLEAD 

JuBY,  ought  not  to  be  given.     Baltimore  etc.  R.  R.  Co.  v.  Boyd,  362. 

10.  Judge  of  Trial  Court  should  Interpose  to  Re-htrain  Everything 
Tending  to  Mislead  Jury,  and  divert  their  minds  from  the  strict  line 
of  inquiry  with  which  they  are  charged.     Id. 

11.  Counsel  should  never  be  Permitted  to  Argue  to  Jubt  against  In- 
stbuctions  of  the  court,  nor  to  indulge  in  any  line  of  argument  or  com- 
ment tending  to  induce  them  to  disregard  the  instructions  given  for  their 
government.     Id. 

12.  If  Instructions  to  Jury  abb  Ambiguous,  and  Court's  Attention  is 
Called  to  Fact,  it  is  its  duty,  at  any  stage  of  the  trial  before  the  jury 
have  acted  upon  them,  to  remove  the  ambiguity,  and  make  the  meaning 
of  the  court  plain.     Id. 


960  Index. 

13.  Real  Ground  of  Party's  OsjEcrnoN  to  Charge  to  Jury  must  be  fairly 
disclosed  to  the  court,  at  the  time  it  is  given;  otherwise  the  objection 
will  be  disregarded.     Clapp  v.  Minneapolis  and  St.  Louis  R.  B.  Co.,  629. 

14.  Statements  by  Counsel  in  Openino  to  Jury,  showing  the  bearing  of  fact 
admissible  under  the  issue  and  expected  to  be  proved,  and  how  the  issues 
are  naturally  affected  by  such  facts,  and  illustrating  the  relation  of  the 
facts,  and  showing  what  must  be  the  final  outcome,  however  strong  and 
forcibly  presented,  and  however  much  calculated  to  appeal  to  the  feel- 
ings, reason,  or  judgment,  are  proper;  although  statements  in  the  open- 
ing  to  the  jury,  wholly  inadnaissible  under  the  issue,  or  statements  in  the 
closing,  admissible  under  the  issue  but  not  proved,  are  improper.  Rigga 
V.  Sterling,  534. 

15.  Improper  Languagk  of  Counsel  in  Argument  of  Cause  cannot  be  re- 
viewed in  this  court,  unless  attention  was  called  to  it  in  the  trial  court, 
and  a  ruling  had  upon  it  there.    St.  Louis  etc.  R.  R.  Co.  v.  Irwin,  266. 

16.  Alleged  Impropriety  op  Remarks  of  Attorney  in  Argument  to  Jury 
will  not  be  considered  as  a  ground  of  error,  when  presented  by  affidavit 
merely,  and  not  as  part  of  a  settled  case  or  bill  of  exceptions.  Smith  v. 
WUsm,  669. 

17.  Findings  on  Immaterial  Issues  need  not  be  Made.  CaUanan  v.  Oil- 
man, 831. 

18.  Failure  to  Find  on  Material  Issues  is  no  cause  for  reversal,  when, 
from  the  undisputed  evidence,  the  finding  must  have  been  against  the 
appellant.     Id. 

19.  Excessive  Verdict  is  Cured  by  entering  a  remittitur  in  the  appellate 
court  for  a  smaller  sum.     Smith  v.  Wabash  etc.  R'y  Co.,  729. 

20.  Error  cannot  be  Assigned  on  a  ruling  to  which  no  exception  was 
taken.     People  v.  Barker,  501. 

21.  Where  Court  Submits  Issue  of  Fact  to  Jury  on  Evidence  AssxmsD 
TO  HAVE  BEEN  DIRECTED  TO  That  Fact,  and  no  exception  is  then  taken, 
nor  suggestion  made  that  the  subject  referred  to  in  the  evidence  was 
not  shown  to  be  identical  with  the  subject  in  issue,  it  is  too  late,  on  ap- 
peal, to  assign  that  as  error  on  the  part  of  the  court.  Wilson  v.  Minne- 
Bota  etc.  Ins.  Association,  659. 

22.  Assignment  of  Error  that  Court  Erred  in  Denyino  Motion  foh 
New  Trial  is  too  general  to  be  available.     Id. 

23.  Right  of  Appeal  is  not  Waived  by  paying  the  judgment.  Haye* 
V.  Nourse,  891. 

24.  Right  op  Appeal  is  not  Waived  by  Payment  of  the  amount  of  th« 
execution  to  the  sheriff,  to  avoid  a  levy.     Burrows  v.  Mickler,  217. 

25.  Mistake  in  Notice  of  Appeal,  whereby  the  judgment  appealed  from  is 
described  as  entered  on  the  day  when  the  judgment  was  rendered,  in- 
stead of  the  day  on  which  it  was  entered,  does  not  entitle  the  respondent 
to  a  dismissal  of  the  appeal.     Anderson  v.  Ooff,  34. 

26.  Appeal  will  not  be  Dismissed  because  statement  on  motion  for  a  new 
trial  was  not  served  on  certain  parties  to  the  action  not  interested  in  the 
appeal.     Dore  v.  DouyJierty,  48. 

27.  Bill  of  Exceptions  Consisting  of  Testimony  of  witnesses,  letters,  etc., 
as  taken  by  the  stenographer,  and  copied,  signed  by  the  judge,  attached 
together,  and  followed  by  a  skeleton  bill  of  exceptions, — as,  "Plaintiff 
was  then  sworn  as  a  witness,  and  testified  as  follows  [here  insert  his 
testimony],"  and  so  as  to  various  witnesses,  depositions,  etc.,  except  that 
the  motion  for  a  new  trial  is  copied  in  full,  and  all  is  attached  together 


Index.  961 

and  signed  by  thfl  Judge,  —  is  suflBcient,  under  the  Missouri  practice,  and 
authorizes  the  clerk  to  fill  up  the  skeleton  bill  with  the  evidence,  depo- 
sitions, etc.,  when  called  for.     Craicford  v.  Spencer,  745. 

28.  Judgment  will  not  be  Reversed  for  Error  in  ADMimNQ  Tsstimont 
that  could  not  by  any  possibility  have  operated  prejudicially  to  the  party 
defeated.     MaUixvoa  v.  Phelps,  581. 

Se«  CToMKON  Carreers;  Equity;  Ejectment;  Exemptions;  Judgmints; 
Partition;  Replevin;  Trespass. 

POST-OFFICES. 
Strkst  Lxtter-boxks  and  Street  Delivery  are  Leoal  Past  or  Post* 
OFFICE  System,  and  a  letter  deposited  in  one  of  these  boxes  must  bo 
considered  as  being  delivered  or  mailed  at  the  post-office.      Wood  r. 
Callagharit  597. 

PRINCIPAL  AND  AGENT. 
See  Agency. 

PROCESS. 

1.  Affidavit  fob  Service  of  Summons  is  sufficient  when  it  shows  a  cause  of 
action  against  the  defendant,  and  that  he  ia  a  resident  at  a  place  in 
another  state,  which  place  and  state  are  named  in  such  affidavit.  In 
such  circumstances  it  is  not  necessary  to  show  an  attempt  to  find  the 
defendant  in  the  county  or  state  where  the  action  is  pending;  nor  is  it 
necessary  to  show  that  an  attachment  has  issued  against  hia  property. 
Anderson  v.  Ooff,  34. 

S.  Order  for  Publication  of  Summons  directing  a  deposit  of  a  copy  of  the 
summons  in  the  post-office,  but  omitting  the  word  "  forthwith  "  in  such 
direction,  is  not  void  because  of  such  omission,  and  will  sustain  a  ser- 
vice, where  such  deposit  was  in  fact  made  on  the  same  day  the  order 
was  signed.     Id. 

Z.  Sheriff's  Return  of  Service  of  Summons  may  be  Amended  after  jadg« 
ment  in  a  justice's  court,  so  as  to  show  jurisdiction  over  the  defendant, 
though  in  the  mean  time  the  defendiint  has  conveyed  premises  levied 
upon  under  the  judgment  by  a  quitclaim  deed.     A  Uiaon  v.  Tliomas,  89. 

4.  Attorney  of  Plaintiff  may  Deposit  Copy  of  Summons  and  complain* 
in  post-office,  and  his  affidavit  that  he  did  ao  ia  competent  evidence. 
Anieraon  v.  (?(#,  34. 

SeeJuKiSDicnoir,  I. 

PUBUC  LANDS. 
Unitsd  States  Patent  issued  to  Minor  Heirs  of  a  father  who  had  made 
a  homestead  entry  upon  land  in  Minnesota,  and  died  leaving  children 
under  twenty-one  years  of  age,  pauet  the  title  to  all  of  said  children, 
although  at  the  time  of  his  death  one  of  them,  a  daughter,  wa«  over  the 
age  of  eighteen  years,  and  therefore  not  a  minor  under  the  laws  of  Min* 
nesota.    AndertOfH  t.  Petenon,  698. 

See  HoMBSTBAM,  24. 

RAILROADS. 
1.  Whx&s  Plaintiff's  Land  has  been  CoNTtNTousLT  axd  Bcnbticiallt 
Occupied  by  Railroad  Company  as  the  bed  of  its  railroad  tracks,  he  ia 
AM.  an.  Bbp..  Vol.  L  —  61 


962  Index. 

entitled  to  a  reasonable,  but  a  substantial,  compensation  for  such  use,  to 
be  measured  by  what  would  be  a  fair  rental  value  for  the  ground  so  oc- 
cupied during  the  time  covered  by  the  action,  although  he  oflFers  no  evi- 
dence whatever  of  any  special  damages  sustained  by  him,  or  that  he  was 
hindered  or  obstructed  in  any  proposed  use  of  his  land  by  reason  of  the 
presence  and  use  of  the  railroad  tracks.  Baltimore  etc.  R.  R.  Co.  v.  Boyd, 
362. 

2.  Evidence  is  Sufficient  to  Sustain  Finding  of  Negligence  on  Part 
OF  Railboad  Compant  which  tends  to  show  that  at  the  time  of  the 
accident  by  which  plaintiff's  intestate,  while  crossing  a  street  in  a  sleigh, 
was  run  into  and  killed,  a  train  composed  of  box-cars  was  running  back- 
wards at  a  higher  rate  of  speed  than  allowed  by  the  city  ordinance;  that 
it  was  after  dark  in  the  evening;  that  the  street  was  in  use  as  one  of  the 
thoroughfares  of  the  city;  that  there  was  at  the  time  no  watchman  or 
flag-man  at  the  crossing;  and  that  the  driver  of  the  sleigh  saw  or  heard 
no  signal,  and  had  no  notice  of  the  approach  of  the  train  in  time  to 
escape.     Bolinger  v.  St.  Paul  etc.  R.  R.  Co.,  680. 

8.  It  IS  FOB  Jury  to  Determine  whether  Speed  of  Railway  Train  was 
Reasonable,  and  the  management  thereof  otherwise  reasonably  pru- 
dent, at  a  street-crossing  in  a  city,  when  the  situation  at  the  crossing, 
the  manner  of  running  the  train,  the  number  and  duties  of  the  employees 
in  charge,  the  rate  of  speed,  the  extent  of  travel  on  the  street,  and  the 
opportunity  for  observation,  are  shown.     Id. 

4.  Whether  Presence  of  Watchman  or  Other  Precautions  not  Taken 

WERE  Necessary  for  the  safety  of  the  public  is  a  question  to  be  deter- 
mined by  the  jury,  in  case  of  a  railway  accident  occurring  at  a  crossing 
on  a  public  thoroughfare  in  a  city.     Id. 

5.  Where  Evidence  is  Offered  to  Show  that  Precautions  were  Taken 

BY  Deceased  and  those  with  him,  at  the  time  of  the  happening  of  a  rail- 
way accident  at  a  public  crossing  in  a  city,  it  is  for  the  jury  to  deter* 
mine  whether  or  not  such  precautions  were  reasonably  sufficient.     Id. 

6.  Crossing  Railroad.  —  To  entitle  one  to  recover  for  injuries  sustained 

while  going  over  a  railroad  crossing  he  must,  before  attempting  to  cross, 
use  reasonable  and  ordinary  care  to  determine  whether  a  train  is  ap- 
proaching, and  if  he  neglects  so  to  do,  he  crosses  at  his  peril.  Wichita 
etc.  R.  R.  Co.  v.  Davis,  275. 

7.  Negligence.  —  Where  the  undisputed  facts  show  that  no  precaution  has 

been  taken  to  ascertain  and  avoid  dangers  by  one  injured  at  a  railroad 
crossing,  it  then  becomes  a  question  of  law  for  the  courts.     Id. 

8.  Whebe  there  13  Conflict  of  Testimony  as  to  Degree  of  care  used  by 

one  who  is  injured  in  crossing  a  railroad,  it  is  then  a  question  for  the 
jury.     Id. 

9.  Failure  to  Ring  Bell  or  Blow  Whistle  of  Locomottvb  at  Private 

Crossing  in  the  open  country,  guarded  by  gates  on  either  side,  where 
there  is  no  station  for  passengers  or  freight,  nor  any  side-track,  and 
where  no  trains  ever  stopped;  where  for  more  tham  twenty  years  no 
whistle  had  ever  been  sounded,  nor  whistling-post  put  up,  nor  any  re- 
quest therefor  made  by  the  owners  of  the  property  entitled  to  use  the 
'  crossing;  and  where  the  line  of  the  railroad  on  either  side  is  nearly 
straight,  —  is  not  evidence  of  negligence  on  the  part  of  the  railroad  com- 
pany to  go  to  the  jury.     Philadelphia  etc.  R.  R.  Co  v.  Fronk,  390. 

10.  Statute  Making  Railroad  Companies  Liable  in  Damages  fob  Injury 
Done  to  "Bitildino  or  Other  Property,"  by  a  fire  communicated  by 


Index.  963 

their  locomotives,  without  contributory  negligence  on  the  part  of  the 
owner  of  the  property,  and  which  gives  the  railroad  company  an  in- 
surable interest  in  the  property  liable  to  be  injured,  is  not  unconstita- 
tional  and  invalid,  eithef  as  denying  to  such  companies  the  equal 
protection  of  the  laws,  or  as  taking  away  their  property  without  duo 
process  of  law,  or  as  impairing  their  rights  under  their  charters  to  use 
fire,  steam,  and  locomotive-engines.  Such  statute  is  valid,  even  in  ita 
application  to  pre-existing  railroad  companies.  Oriasell  v.  HouacUonie 
S.  R.  Co.,  138. 

11.  Expression  "Building  or  Other  Property,"  Used  in  Connecticdt 
Statute,  Making  Railroad  Companies  Liable  for  fires  caused  by 
their  locomotives,  without  contributory  negligence  on  the  part  of  tho 
owner  of  the  property,  includes  fences,  growing  trees,  and  herbage. 
The  provision  in  the  statute,  giving  the  railroad  company  an  insurable 
interest  in  the  property  liable  to  be  injured,  does  not  limit  the  liability 
of  the  company  for  injury  to  property  such  as  is  ordinarily  regarded  aa 
insurable.     Orissell  v.  Housaionic  R.  R.  Co. ,  1 38. 

12.  One  Who  Operates  Private  Railroad  with  Locomotive-enoine  Takes 
upon  HndSELT  Large  Responsibilties  to  prevent  loss  by  fire  there- 
from, and  is  required  to  use  an  amount  of  care  and  caution  commen- 
surate with  and  in  proportion  to  the  risks  assumed.  Kendrick  v.  Totele, 
626. 

13.  Railroad  Corporation  is  not  Liable  for  Goods  Destroyed  bt  Fma 
while  in  its  possession  under  a  contract  of  carriage,  under  the  Massachu- 
setts Public  Statutes,  chapter  112,  section  214,  which  provides  that  a  rail- 
road corporation  shall  be  responsible  in  damages  to  a  person  whoee 
buildings  or  other  property  may  be  injured  by  fire  communicated  by  its 
locomotive-engines.     Baxaett  v.  Connecticut  River  Railroad  Co.,  443. 

14.  In  Action  for  Death  from  Accident  Caused  bt  Broken  Switch-kail, 
Evidence  of  Similar  Accidents  at  the  same  switch  while  the  rail  waa 
in  substantially  the  same  condition  is  admissible.  Clapp  v.  MinneapoU* 
and  St.  Louis  R.  R.  Co.,  629. 

15.  Though  It  is  Error  to  Leave  Construction  of  WErmtK  Rin.zs  and 
regulations  of  railroad  company  for  the  jury,  still  such  error  will  not  be 
noticed  when  made  in  favor  of  the  party  excepting.  Smith  t.  Waba^ 
etc  Ry  Co.,  729. 

16.  In  Action  against  Railroad  Company  for  damages  sustained  through 
its  negligence,  the  jury  should  be  instructed  to  take  into  consideration  all 
the  circumstances,  and  what  are  aggravating  and  what  are  mitigating 
should  be  pointed  out;  but  a  failure  in  this  respect  ia  not  error  when 
there  are  no  mitigating  circumstances  in  the  case.     Id. 

17.  Road-master  AND  Conductor  of  Railroad  Company  have  No  Author- 
ity to  Employ  Surgeon  to  treat  an  injured  employee  of  such  company. 
Peruntular  Railroad  Company  v.  Oary,  194. 

See  Common  Cabbisr;  Mastkb  amd  Skkyaht. 

RAPE. 
See  Criminal  Law,  16^  17. 

REALTY. 
Courts  cannot  Limit  Extsmt,  up  or  down,  to  Which  Onb  may  Enjot 
HIS  Property,  and  if  he  goee  higher  than  bi«  neighbor,  without  inter- 


964  Index. 

fering  with  the  rights  of  others  or  injuring  his  neighbor,  he  sxibjects 
himself  to  no  liability.    Detroit  Base-hall  Club  v.  Deppert,  566. 

RECEIVERS.* 
Rkchveb  Takes  Propektt  Subject  to  Existiso  EQUixiEa  and  Lxens. 
BaUa  V.  Wiggin,  234. 

RECORDS. 

1.  Record  can  be  Amended  only  bt  Mattebs  of  Record.    Adams  v. 

Re  Qua,  191. 

2.  Clerk  or  Prothonotart  of  Court  is  Presumed  to  have  Authority  to 

Make  and  Certify  Copies  of  the  records  of  the  court  in  his  keeping, 
and  such  copies  are  duly  authenticated  by  his  certifi:»te  over  his  official 
signature  and  the  seal  of  the  court.  His  official  signature  and  the  sea) 
are  duly  authenticated  by  the  great  seal  of  the  state  or  government  in 
which  the  court  is  found,  affixed  to  the  certificate  of  the  keeper  thereof. 
Ounn  V.  Peakea,  661. 

REGISTRATION. 

1.  Von)  Instruments  cannot  be  Recorded  legally.    Sttme  v.  French,  237. 

2.  Priority  in  Recobdino  Conveyances  of  Real  Estate  protects  only  in- 

nocent and  bona  Jide  purchasers  and  holders.  MUcJiell  v.  Aten,  231. 
8.  Purchasers  of  Land  must  be  Deemed  to  have  Examined  every  deed  and 
instrument  on  record  affecting  their  title,  and  to  have  notice  of  every 
fact  disclosed  by  the  record,  and  every  other  fact  which  an  inquiry  sug- 
gested by  these  records  would  have  led  up  to.  McPIierson  v.  RolUns,  826. 
See  Deeds. 

RELEASE. 
Receipt  under  Seal,  Given  by  Obligee  to  Joint  Obligor  "in  full  satis- 
faction for  his  liability  "  upon  the  obligation,  releases  the  co-obligors,  if 
the  receipt  itself  does  not  show  a  contrary  intentioa.     HdU  v.  Spaulding, 
476. 

REPLEVIN. 

1.  Replevin,  Proof  of  Ownership  of  Property.  —  A  replevin  suit  was  dis- 

continued by  the  plaintiff,  the  defendant  took  judgment  for  a  return  of 
the  property,  and  issued  an  execution,  which  was  returned  unsatisfied. 
In  a  suit  on  the  replevin  bond  for  failure  to  return,  held,  that  the  defend- 
ants were  entitled  to  show  that  the  principal  defendant  (plaintiff  in  the 
replevin  suit),  was  the  owner  of  the  property  at  the  time  it  waa  replevied, 
and  was  still  such  owner.     Pearl  v.  Oarlock,  603. 

2.  Where  Judgment  in  Replevin  has  been  Rendered  on  Waiver  of  Re- 

turn for  the  value  of  the  property,  all  proper  questions  must  be  liti- 
gated on  the  assessment  of  damages,  and  are  not  afterwards  open.    Id. 

8.  Replevin  is  Possessory  Action,  and  does  not  necessarily  determine  title. 
It  may  fail  either  because  the  plaintiff  shows  no  right  of  possession,  or 
because  the  defendant  is  shown,  not  to  have  wrongfully  withheld;  and  it 
may  fail  for  lack  of  demand  in  some  cases,  as  well  as  for  lack  of  substan- 
tial right.     Id. 

4.  Judgment  in  Replevin,  where  there  is  No  Assessment  of  Damages, 
Merely  Determines  the  right  of  possession  at  the  time,  and  is  not  in- 
consistent with  the  right  of  the  party  defeated  to  recover  it  back  after- 
wards under  a  change  of  circumstances.     Id. 


i 


Index.  965 

A.  DsTSNDAirr  vx  Bkflevin  should,  upon  Replevin  Bond,  Reooveb  No 
More  than  hia  legal  damages,  which  depend  npon  the  nature  of  his  right 
to  the  property,  or  the  character  in  which  he  held  it.  If  he  had  merely 
A  possessory  or  partial  interest  in  the  property,  and  was  in  no  position 
to  hold  the  entire  interest  for  some  one  else,  then  he  should  not  recover 
the  full  value.     Id. 

See  Husband  and  Witb,  5. 

RES  ADJUDICATA. 
See  Extradition,  6. 

RESTRAINT  OF  TRADE. 

See  Ck>NTRACT3,  8. 

SALES. 

1.  Wabranty  to  Which  Order  for  Chattel  Refers  and  Reserves  Pxtll 

Benefit  must  bb  of  Such  Legal  Validitt  as  to  support  an  action 
thereon  by  the  vendee  in  case  of  a  breach  thereof,  to  enable  the  vendor 
to  maintain  an  action  on  the  order.     Grieb  v.  Cole,  533. 

2.  Warranty  is  not  Invalid  for  Incompleteness,  where  the  blanks  in  it 

for  the  date,  name  of  the  vendee,  and  subject-matter  are  not  filled  out,  but 
it  is  printed  on  the  back  of  an  order  for  the  chattel,  which  contains  these 
terms,  and  which  refers  to  the  warranty,  thereby  constituting  the  order 
and  warranty  one  instrument.     Id. 

3.  Warrantor  is  Bound  by  Printed  Signature,  which  be  adopts  aa  bis, 

ma  fully  as  if  it  were  in  his  handwriting.     Id. 

4.  Article  Delivered  may  be  Shown  not  to  havb  been  Article  Pur* 

CHASED,  under  the  general  issue,  in  an  action  to  recover  the  purchase 
price.  Id, 
6.  Order  for  Machine  from  Dealer  Implies  that  It  shall  be  New,  not 
second-hand,  or  the  worse  for  wear;  and  the  dealer  cannot  impose  upon 
the  purchaser  a  second-hand  and  worn  machine,  whether  it  complies 
with  the  terms  of  his  warranty  or  not  as  to  being  good  and  well  made, 
and  that  it  will  do  as  good  work  as  any  other  machine  of  its  class.     Id. 

6.  Under  Executory  Contract  of  Sale  Reservino  Title  until  Payment 

is  made,  a  honajide  purchaser  from  the  vendee  acquires  no  valid  claim  to 
the  property.     Palmer  v.  Hovoard,  60. 

7.  Warranty  that  Hoos  are  Fit  for  Food  is  not  Implied,  where  farm- 

ers who  are  not  dealers  in  provisions  kill  hogs  and  sell  them,  knowing 
that  the  purchasers  intend  them  for  domestic  use.  Oiroux  v.  SiednuM, 
472. 

8.  Right  of  Stoppage  in  TRANsrru  is  favored  by  the  law.     T^fU  v.  SyU 

vesUr,  .WS. 

9.  I.nsolvent  Vendee  may  Refuse  to  Take  PoasBasioN  and  thus  leave 

unimpaired  the  right  of  stoppage  tn  tranailii.     Id. 

10.  Good  Stoppaob  in  Transitu  is  Effected  when  an  insolvent  purchaser 
gives  notice  of  his  inability  to  pay  to  the  vendor,  and  leaves  the  goods 
when  they  arrive  in  the  possession  of  some  person  for  the  vendor,  the 
latter  expressly  or  tacitly  assenting.     Id. 

11.  Right  of  Stoppage  in  Transitu  may  be  effected  by  demand  npon  the 
carrier  and  an  insolvency  messenger,  when  the  vendee  heooming  insolvent 
has  countermanded  the  order  of  purchase  and  refused  to  receive  the 


966  Index. 

goods,  and  hia  messenger  in  insolvency,  before  an  assignee  is  appointed, 
has  accepted  the  goods  from  the  carrier  and  paid  the  charges  thereon.  Id. 
12.  Messekoeb  Appointed  fob  Insolysnt  Vendee  cannot  receive  goods  so 
as  to  terminate  the  right  of  stoppage  tn  transitu.  He  acta  in  a  passive  ca- 
pacity merely  as  cnstodian,  until  an  assignee  is  appointed,  and  has  no 
more  authority  ex  officio  than  a  carrier  or  middleman.  Therefore  while 
the  goods  are  in  his  hands  the  right  of  stoppage  may  be  exercised.  Id. 
See  Oamino;  Mortoages,  1-3. 

SEAMEN. 
See  Shipping. 

SET-OFF. 

See  COITNTERCLAIM. 

SEWERS. 
See  MUNICIPAL  Corpohations. 

SHERIFFS. 
Sale  bt  Shbeifp  op  Property  Levied  itpon  in  Which  Exemption  is 
Claimed,  Made  in  Violation  of  Claimant's  Statutory  Rights,  is  a 
conversion,  respecting  ■which  he  may  be  regarded  as  a  tort-feasor  from 
the  beginning,  and  he  may  be  regarded  as  having  received  goods  con- 
trary to  the  provisions  of  the  statute  exempting  property  from  sale  an 
execution.     McCoy  v.  Brennan,  589. 

See  Executions;  Process,  3. 

SHIPPING. 

1.  SiOK  OB  Injured  Seamen  are  Entitled  to  be  Cabedfob  and  Cubed 

at  the  expense  of  the  ship,  and  not  to  be  turned  adrift  in  strange  lands 
without  adequate  provision.     Scarffv.  Metcalf,  807. 

2.  Owners  of  Ship  are  Answerable  for  Negligence  of  Master  in  render- 

ing care  or  medical  aid  to  sick  or  injured  seamen.    Id. 
8.  Neglect  of  Master  of  Vessel,  whereby  the  mate  was  not  properly  cared 
for  while  injured,  ia  not  the  neglect  of  a  fellow-servant.     Id. 

4.  Cost  op  Nursing  and  Medical  Attendance  for  Sick  or  Disabled  Sea- 

man Falls  upon  Ship,  although  he  may  have  been  removed  to  his  own 
house.     Id. 

5.  Damages  for  Injuries  to  Sick  or  Injured  Seaman,  resulting  from  ne- 

glect of  owners  of  ship,  or  of  the  master,  as  their  representative,  may  be 
recovered  by  proceedings  in  rem  against  the  vessel,  or  by  action  against 
the  owner.     Id. 

6.  Owners  of  Vessel  are  not  Relieved  from  Liability  for  Neglect  to 

Sick  or  Injured  Seaman  by  an  agreement  with  the  master  to  sail  the 
vessel  on  the  shares,  he  to  man  the  vessel,  victual  the  crew,  and  pay  the 
running  expenses  for  one  half  of  the  gross  earnings.  The  owners  can  be 
relieved  by  nothing  short  of  an  actual  demise  of  the  vessel,  such  as  takes 
from  them  all  possession,  authority,  or  control.     Id. 

7.  Liability  of  Owners  of  Fishing  Vessels  is  not  Controlled  and  Lim- 

ited by  the  provisions  of  the  United  States  Statutes  of  1884,  chapter  121, 
section  18,  which  enacts  that  "the  individual  liability  of  a  ship-owner 


Index.  967 

shall  be  limited  to  the  proportion  of  any  or  all  debts  and  liabilities  that 
his  individual  share  of  the  vessel  bears  to  the  whole."  Shnpton  v.  Story, 
480. 
8.  Whebe  Steamship  Compact  Becomes  Bottnd  bt  Law  ob  bt  Choicx  to 
Pkovide  Surgeon  for  its  Ships,  its  duty  to  passengers  demands  the 
selection  of  a  reasonably  competent  man  for  that  office,  and  it  is  liable 
for  a  neglect  of  that  duty.  But  the  company  is  responsible  solely  for 
its  own  negligence  in  the  selection  of  a  surgeon,  and  is  not  liable  for  the 
negligence  of  the  surgeon  employed.     Laivbheim  v.  De  K.  N.  S.  Co.,  816. 

STATUTE  OF  FRAUDS. 

1.  CoKTRACT  Void  ukder  Statute  of  Fiiauds  oahnot  bb  Used  fob  Ant 

Purpose,  and  is  regarded  as  a  nullity.     Raub  v.  Smith,  619. 

2.  Not  only  is  Verbal  Contract  for  Sale  of  Lands  Void,  but  a  verbal 

agreement  by  one  to  purchase  an  interest  in  lands  for  another  is  void. 
Id. 

3.  Verbal  Agreement  to  Form  Copartnership  Involvino  Purchasb  of 

Lands  for  the  purposes  of  the  copartnership  business  includes  a  contract 
for  the  sale  of  land,  and  is  void  under  the  statute  of  frauds.    Id. 

4.  Statute  of  Frauds  cannot  be  Set  up  to  Defeat  Action  upon  Quantum 

Meruit  for  services  rendered  by  the  plaintifiTs  minor  son  under  an  ex- 
press verbal  contract,  by  which  it  was  agreed  that  the  son  should  work 
in  the  defendant's  office  for  two  years,  and  receive  instruction  in  den* 
tistry,  and  at  the  end  of  that  time  have  his  tuition  fees  paid  in  a  dental 
college,  but  before  the  expiration  of  that  time  the  son  became  unwilling 
to  remain  longer  under  the  contract,  and  asked  that  a  certain  sum  be 
paid  him  for  his  services  thereafter,  which  was  done.  Freeman  v.  Foe», 
467. 

STATUTE  OF  LIMITATIONS. 

1.  Statute  of  Limitations  Runs  against  Weak-minded  Person,  whoM 

mental  infirmity  does  not  amount  to  idiocy  nor  lunacy,  from  the  time  of 
the  discovery  of  a  cause  of  action  based  upon  fraud,  such  fraud  having 
been  explained  to  him  so  that  he  was  made  to  understand  it,  though  with 
some  difficulty.     Piper  v.  Hoard,  785. 

2.  Statute  of  Limitations  Once  Set  in  Motion  continues  to  run,  notwith- 

standing  undue  influence  exercised  by  the  defendant  over  plaintiff,  the 
latter  being  weak-minded,  but  not  an  idiot  nor  lunatic.     Id. 

8.  Statute  of  Limitations  is  Properly  Pleaded,  when  to  a  complaint  seek- 
ing relief  on  the  ground  of  fraud  the  answer  pleads  that  the  cause  of 
action  did  not  accrue  within  six  years  before  the  commencement  of  the 
action.    Id. 

4.  Acknowledgment  in  WRmNo  Sufficient  to  Take  Case  out  of  Stat- 
ute of  Limitations  may  consist  of  an  order  drawn  by  the  debtor  in 
favor  of  the  cretlitor,  and  requesting  a  third  i>er8un  to  pay  the  Utter  a 
sum  named  in  such  order.     Manclteater  v.  Braedner,  828. 

6.  Oral  Evidence  is  Admissible  to  Identify  Debt  to  Which  Acknowl- 
EixiMENT,  relied  upon  to  take  a  demand  out  of  the  statute  of-limitations, 
relates.    Id. 

f.  Writino,  to  CoNarrnrn  Acknowledgment  Suffictent  to  Takb  Debt 
OUT  OF  Statute  of  Limitations,  must  recognize  the  debt  as  existing, 
and  contain  nothing  inconsistent  with  an  intention  on  the  part  of  the 
debtor  to  pay  it.     Id. 


968  Index. 

statutes. 

1.  Terms  "to  Reoulatb"  and  "to  Pkohibit''  ark  not  STNOimfoutL 
People  V.  Oaduxty,  578. 

2^  Amendatort  Act  Which  i3  Uiqhly  Penal  in  its  Charactzr  precludes 
a  liberal  constmction  of  the  title  of  the  original  act,  such  as  would  ex* 
tend  it  to  objects  not  within  the  meaning  of  the  language  employed.   Id. 

3.  CoNSTmrnoNAL   Law  —  Amendment  hot  within  Title  of  Original 

Act. — An  act  entitled  "An  act  to  regulate  the  sale  of  spirituous 
liquors,"  etc.,  was  amended  by  adding  a  new  section  prohibiting  abso- 
lutely the  sale  of  such  liquors  within  certain  specified  limits.  Held, 
that  the  amendment  was  not  embraced  in  the  title  of  the  original  act, 
and  therefore  was  unconstitutional  and  void.     Id. 

4.  CoNSTiTtTTioNAL  Law.  —  Entire  statute  need  not  be  set  forth  in  an  act 

amending  it  by  adding  new  sections  or  altering  old  onea.  It  is  only 
when  all  the  Bections  of  a  statute  are  amended  that  the  entire  act,  as 
amended,  most  be  set  out  in  the  amendatory  statute.  State  v.  Thurt- 
ton,  720. 

See  Constitutional  Law. 

STOCK. 
See  Corporations. 

STOPPAGE  m  TRANSITU. 
See  Common  Carriers,  11,  12;  Sales. 

SURETYSHIP. 
Bjjbxtt  on  Joint  and  Several  Bond  Exeocted  to  Husband  by  Wrra 
AS  Principal  Obugor  cannot  Set  up  Incapacity  of  the  principal  to 
contract  with  her  husband  as  a  defense  to  an  action  on  the  bond.      Winn 
V.  Sanford,  461. 

See  Duress,  1;  Mortqaoes,  4,  5. 

TAXATION. 

1.  In  Suit  to  Foreclose  Mortgage,  Parties  may  Litiqatb  Validity  of  Tax 

Title  asserted  by  the  holder  of  a  junior  lien  to  give  him  an  absolute  title 
to  the  land,  discharged  from  the  lien  of  the  mortgage,  where  the  holder 
of  such  junior  lien  has  been  made  a  party  defendant  in  the  suit.  Wilson 
V.  Jamison,  635. 

2.  Holder  of  Judgment  Lien  Junior  to  Mortgage  can,  by  Purchasing  at 

Tax  Sale,  Acquire,  as  against  the  mortgagee,  a  title  divesting  the  lien 
of  the  mortgage.     (By  equally  divided  court.)    Id. 

3.  Judgment,  Sale,  and  Deed  of  Land  for  Taxes,  under  the  Missouri  stat- 

utes of  1877,  page  386,  section  6,  in  order  to  bind  the  interests  of  the 
owner,  must  show  that  he  was  made  a  party,  if  known;  and  if  not  known 
and  not  made  a  party,  then  his  interest  can  only  be  affected  by  making 
the  party  appearing  by  the  record  to  be  the  owner  a  party  to  the  suit. 
Evam  V.  Robberson,  701. 

See  Attorney  and  Client,  3. 

TELEGRAPHS. 
L  Omission  of  Material  Word  in  Transmission  of  Teleoraphio  Messaom 
raises  a  presumption,  in  the  absence  of  proof  to  the  contrary,  that  th« 


Index.  969 

miatake  resulted  from  the  fault  of  the  telegraph  company.  AUen  t. 
Western  Union  Tel.  Co.,  353. 

5.  Stipulation  in  Teleqraph  Blanks  that  the  company  shall  not  be  liable 

for  mistakes  or  delays  in  transmission,  delivery,  or  non-delivery  of  nnre- 
peated  messages,  whether  happening  by  the  negligence  of  its  servants  or 
otherwise,  beyond  the  amount  received  for  sending  the  message,  is  void 
aa  against  public  policy.     Id. 

8.  As  BETWEEN  Sender  and  Innocent  Receiver  oy  Teleoram,  the  party 
who  selects  the  telegraph  as  means  of  communication  must  bear  any  loss 
occasioned  by  errors  in  transmission  on  the  part  of  the  telegraph  com- 
pany.    But  the  sender  can  recover  his  loss  from  such  company.     Id. 

4.  As  BETWEEN  SENDER  AND  RECEIVER  OF  Teleqrah  in  which  an  error  is 
made  by  the  telegraph  company,  the  telegram  received  is  the  original 
and  best  evidence  of  the  contract  binding  on  the  sender.     Id. 

6.  Telegraph  Comtant,  Liabilitt  of  —  Measttee  of  Dauagxs.  — A  tele- 

graph company  is  liable  for  damage  resulting  naturally,  and  in  the  usual 
course  of  business,  from  its  failure  to  send  or  deliver  a  dispatch  correctly 
and  promptly,  without  requiring  the  sender  to  disclose  its  importance  to 
the  company  or  its  agent.  Western  Union  TeL  Co.  v.  Hyer,  222. 
6.  ClFHEB  DiSFATCH.  —  It  is  of  no  consequence  whether  the  dispatch  is  in 
plain  English  or  in  cipher,  provided  such  cipher  is  written  in  the  letters 
of  the  English  alphabet.     Id. 

See  C!oNSTiTUTioNAL  Law,  13. 

TRADE-MARKS. 

1.  Pabtt  Who  has  Simulatbd  Another's  Trade-hark  is  in  No  Condition 

TO  C!omplain  of  a  third  party  for  simulating  the  trade-mark  that  he  him- 
self is  using  in  fraud  of  the  original  owner's  rights.  Parlett  v.  Ouggen' 
hdmer,  416. 

2.  Right  of  Party  to  have  his  Trade-mark  Protected  is  Forfeited  by 

his  stamping  upon  his  goods,  in  connection  with  such  trade-nmrk,  repre- 
sentations which  are  untrue,  intended  to  mislead  the  public  into  a  be- 
lief that  his  goods  have  an  origin  other  tham  the  true  one.  And  where 
such  forfeiture  has  once  been  declared  by  a  court  having  jurudiction  of 
the  subject-matter  and  of  the  parties,  the  production  of  that  record  will 
be  BufiBicient  for  the  same  purpose  in  every  other  court.  While  he 
may  thereafter  continue  to  use  such  trade-mark,  his  right  of  exclusive 
use  is  gone  from  him  forever,  and  the  right  to  the  exclusive  use  which 
he  himself  cannot  assert,  no  other  person  can  assert  for  him.     Id. 

3.  Where  First  Person  to  Use  Words  "Golden  Crown  "  as  Trade-mark 

has  Forfeited  his  Right  to  the  exclusive  use  thereof,  another  person 
may  ose  those  words,  in  connection  with  other  devices,  to  constitute  a 
trade-mark  of  his  own,  and  b  entitled  to  an  injunction  to  restrain  a 
third  person  from  infringing  such  trade-mark  by  using  an  imitation 
of  it  BO  close  as  to  mislead  the  ordinary  purchaser,  there  being  oca- 
rincing  proof  that  the  similarity  is  the  resolt  of  design,  and  not  of  aod- 
dent.    Id. 

TRESPASS. 
L  Plaihtiff  in  Trespass  Qcari  Claosum  Freoit  is  not  Bouhd  to  Oivi 
APliRMATrvB  Proof  that  he  has  sustained  any  particular  amount  of 
damage.     Every  unauthorized  entry  upon  the  land  of  another  is  a  tres- 
pass, which  entitles  the  owner  to  a  verdict  for  some  damages,  although 


970  Index. 

they  may,  under  some  circumstances,  be  so  small  aa  to  be  merely  nom- 
inal. Baltimore  etc.  R.  R.  Co.  v.  Boyd,  362. 
2.  Tbkblb  Damages,  cndeb  Section  7957,  Howell's  Statutes  of  Michi- 
QAN,  FOR  Cutting  Tiuber  on  Land  of  Anotheb,  are  in  their  nature 
punitory,  and  are  not  designed  to  be  inflicted  in  any  case  not  involving 
something  like  willful  wrong.  They  csmnot  arise  from  mere  neglect,  but 
must  come  from  active  misconduct.  Michigan  Land  etc.  Co.  v.  Deer  Lake 
Co.,  491. 

8.   BUBCEN  OF  PbOOF  OF  SHOWING  THAT  TbESPASS  WAS  CASUAL  AND  InVOL- 

X7NTART  IS  UPON  DEFENDANT,  where  treble  damages  are  claimed  by  the 
plaintiff,  under  section  7957,  Howell's  Statutes  of  Michigan,  for  cutting 
timber  on  his  land.     Id. 

4.  Measure  of  Damages  for  Timber  Cut  by  Tebspasseb  on  Land  of  An- 
other, BUT  not  Removed,  is  the  value  of  the  timber  standing,  where 
the  owner  did  not  refuse  to  allow  the  timber  to  be  removed  by  the  tres- 
passer, and  where  he  tried  to  sell  the  timber,  but  could  not,  and  subse- 
quently it  was  destroyed  by  fire,  although  it  seems  if  the  owner  had 
refused  to  permit  the  trespasser  to  remove  the  timber,  its  value  upon  the 
ground  would  then  have  been  deducted.     Id. 

6.  Bight  to  Sub  for  Damages  to  Real  Estate  is  not  destroyed  nor  assigned 
by  a  subsequent  conveyance  of  such  real  property.  Lancaster  v.  Con- 
necticut  etc,  Ins.  Co.,  739. 

6.  Declarations  Made  by  Counsel  whilb  Abgxtino  Question  of  Dam« 
AGES  before  a  jury  of  condemnation  of  the  property  in  question  cannot 
be  admitted  in  evidence  in  a  subsequent  action  of  trespass  quare  clatisum 
/regit,  for  the  purpose  of  showing  malice  on  the  part  of  the  defendant, 
and  thereby  enhancing  the  damages.  Baltimore  etc  R.  R.  Co.  v.  Boyd, 
362. 

TRUSTS  AND  TRUSTEES. 

1.  Onb  mat  bb  Constituted  Trustee,  ex  Malificio,  in  Favor  of  Pebson 

not  in  Esse,  by  fraudulent  representations,  if  the  latter  merely  seeks  to 
obtain  property  which  the  former  holds  by  virtue  of  his  fraud,  and 
which  the  latter  would  be  entitled  to  hold  if  the  representations  had 
been  true.     Piper  v.  Hoard,  789. 

2.  Trustee,  Who  is  Beneficiary's  Son,  may  be  Removed,  on  application 

of  beneficiary,  because  a  state  of  mutual  hostility  has  arisen  between 
them  since  the  creation  of  the  trust,  attributable  in  part  to  the  fault  of 
the  trustee,  and  which  would  naturally  pervert  the  feelings  and  judg- 
ment of  the  trustee,  who  is  given  full  power  to  determine  what  allow- 
ance the  beneficiary  shall  have,  limited  only  by  the  duty  of  exercising  a 
fair  and  reasonable  discretion,  although  there  is  no  distinct  proof  of  mis- 
conduct in  consequence  of  such  hostility.  Wilson  v.  WHaon,  477. 
See  Bona  Fidb  Purchasers;  Corporation's,  6;  Mortgages,  14. 

USAGE. 
See  Negotiable  Instruments,  10. 

VENDOR  AND  VENDEE. 
1.  Contract  of  Purchase  Transfers  to  Grantee  the  equitable  right  to  the 
property,  subject  to  the  grantor's  lien  for  the  remaining  unpaid  purchase* 
money.  Under  contract  of  purchase,  grantee  can  compel  grantor  to 
make  conveyance  of  legal  title  when  the  purchase-money  ia  paid.  Burke 
y.  Johnaont  252. 


Index.  971 

2.  iNTKBKsrr  o»  Vemsob  Who  has  Made  Contract  o»  Sale  and  received 
part  of  the  purchase-money  is  not  subject  to  attachment  or  execution, 
though  he  retains  the  legal  title.  The  vendee  may,  therefore,  safely  pay 
him  the  balance  of  the  purchase-money,  though  the  property  h^MT,  in  the 
mean  time,  been  attached  under  a  writ  against  the  vendor.  Id. 
See  Attachments,  1. 

WARRANTY. 
See  Sales. 

.WATERS. 
Sm  Ice;  Municipal  CoBPORATiQirs. 

WILLS. 

1.  To  Establish  Undue  Intlttencb  Sufficient  to  Avoid  Will,  the  cir- 

cumstances of  its  execution  need  not  be  inconsistent  with  every  other 
hypothesis.  All  that  is  necessary  is,  that  the  evidence  of  the  party  at- 
tacking the  will  of  a  person  of  sound  mind,  on  the  ground  of  undue 
influence,  shall  preponderate  over  the  evidence  adduced  and  the  pre- 
sumptions prevailing  on  behalf  of  the  proponents  of  the  wilL  Oay  v. 
Gilligan,  712. 

2.  Means  bt  Which  Undue  Inxluence  over  a  testator  is  acquired  are  im< 

material.     Id. 

3.  Undue  Influence.  — Persuasion,  appeals  to  the  affections,  of  ties  of  kin- 

dred, to  a  sentiment  of  gratitude  for  past  services,  or  pity  for  future 
destitution,  and  the  like,  do  not  constitute  undue  influence.  But  pres- 
sure of  whatever  character,  whether  acting  on  the  fears  or  the  hopes,  if 
so  exerted  as  to  overpower  the  volition  without  convincing  the  judgment, 
is  a  species  of  restraint  under  which  no  valid  will  can  be  made.  Impor- 
tunity or  threats,  such  as  the  testator  has  not  the  courage  to  resist, 
moral  command  asserted,  and  yielded  to  for  the  sake  of  peace  and  quiet, 
or  of  escaping  from  distress  of  mind  or  social  discomfort,  if  carried  to  a 
degree  in  which  the  free  play  of  the  testator's  judgment,  discretion,  or 
wishes  is  overborne,  will  constitute  undue  influence,  though  no  force  ia 
used  or  threatened.     Id. 

4.  If  Undue  Influence  is  Once  Shown  to  Exist,  every  gift  from  the  weaker 

party  to  the  stronger  is  presumptively  tainted  by  such  influence;  and 
the  recipient  must  assume  the  burden  of  establishing  its  fairness  and 
validity.     Id. 

5.  Equttt  will  Relieve  against  Feaud  in  Pbocubino  Will,  if  the  fraud 

does  not  go  to  the  whole  will,  but  only  to  some  particular  clause,  or 
where  the  fraud  is  in  obtaining  the  consent  of  the  next  of  kin  to  the  pro- 
bate of  the  wilL    Id. 

6.  Existence  of  Confidential  ob  Fiduciabt  Relations  imposes  upon  the 

recipient  of  a  gift  the  onus  of  establishing  its  absolute  fairness.  In  the 
presence  of  such  relations,  a  court  of  equity  will  preiome  confidence 
placed  and  influence  exerted.     Id. 

7.  DisiNHERrriNO  bt  Tsstatoe  of  Some  of  ms  Children,  without  apparent 

cause,  imposes  upon  those  claiming  under  the  will  the  necessity  of  giving 
■ome  reasonable  explanation  of  its  unnatural  cbvacter.     Id. 


972  Index. 

8.  LzGACiES  or  Sfbch'io  Natube  are  paid  before  general  ones.     Cooeh  r. 

Cooch,  161. 

9.  Bequest  or  "Aix  mt  Personal  Estate"  means  the  balance  of  personal 

estate  after  the  payment  therefrom  of  testator's  debts,  and  other  legal 
charges.     Id. 

10.  Specific  Legacies  are  Sucn  onlt  as  Designate  Particular  Things, 
or  things  by  a  particular  description.    Fd. 

11.  Bequest  of  All  a  Man's  Personal  Property  is  not  a  specific  legacy. 
Its  import  is  the  same  as  is  expressed  by  the  words,  "  rest  and  residue." 
Id. 

12.  Beqxtest  of  "Bank  Stock"  is  to  be  Construed  as  Describing  Testa- 
tor's Deposits  in  Various  Savings  Banks,  he  having  no  shares  of  stock 
of  any  bank,  nor  any  other  property  in  banking  associations.  TomUn- 
8on  V.  Bury,  464. 

13.  Legacy  is  Specific,  and  not  General,  when  it  is  of  "all  the  mill  stock 
and  bank  stock  remaining  in  my  name  after  the  decease  of  my  said 
wife."    Id. 

14.  Where  Husband  by  Will  Devises  Real  Estate  to  his  wife,  which  she 
accepts,  it  must  be  taken  in  lieu  of  dower  out  of  the  lands  of  which  he 
died  seised,  unless  by  his  will  he  otherwise  declared.    Kaes  v.  Gross,  767. 

15.  Words  "Die  without  Issue  of  his  Body  Lawfully  Begotten,"  in 
Will,  must  be  construed  to  mean  a  definite  failure  of  issue,  and  will 
support  a  limitation  over,  if  other  words  in  the  will  do  not  prevent  this 
result.     Comha  v.  Combs,  359. 

16.  Devbb  to  Person  and  Heirs  of  his  Body  Lawfully  Begotten,  with 
Full  Power  and  authority  to  sell  and  convey  the  estate  devised  in  his 
lifetime,  or  to  dispose  of  it  by  last  will  and  testament,  gives  to  the 
devisee  an  absolute  and  unqualified  fee  which  is  not  determinable  on 
any  event  whatsoever,  and  a  limitation  over  in  such  case  is  void,  because 
it  is  inconsistent  with  the  absolute  property  given  to  the  devisee  first 
named.     Id. 

17.  Executory  Devise  uay  be  Limited  after  Fee-simple;  but  in  such  case, 
the  fee  must  be  made  determinable  on  some  contingent  event.  It  must 
be  provided  that  the  fee  is  to  cease,  and  the  executory  devise  to  vest,  on 
a  contingency  that  must  happen,  if  at  all,  within  a  life  or  lives  in  being, 
and  twenty -one  years  and  a  fraction  thereafter.    Id. 

18.  Bequest  to  Church,  "Interest,  Income,  or  Proceeds  thereof  to  be 
Applied  to  the  Sunday  School  belonging  to  or  attached  to  said  church," 
is  sufficiently  definite  and  certain  in  respect  to  the  objects  thereof,  and 
capable  of  being  enforced,  where  the  Sunday  school  is  shown  to  be  an 
integral  part  of  the  church  organization,  and  therefore  embraced  within 
the  scope  of  the  corporate  functions  and  work  of  the  church,  although 
such  Sunday  school  is  not  itself  a  corporate  body.  Eutavo  Place  Baptist 
Church  of  Baltimore  City  v.  Shively,  412. 

19.  In  Construing  Will,  Testator's  Particular  Intent,  Shown  by 
Single  Provision  Standing  by  Itself,  must  Yield  to  the  general 
leading  iutent,  as  manifested  in  the  whole  instrument.  Phelps  v. 
Bates,  92. 

20.  Word  "  or  "  should  be  Construed  "  and  "  in  Clause  in  Will,  whereby 
the  testator  gave  his  son  certain  estate,  with  a  gift  over,  if  he  should  di« 
"during  minority  or  without  issue";  and  the  estate  would  become  inde« 
feasible  in  the  son,  at  least  as  soon  as  he  attained  his  majority.    Id. 

See  Contracts,  9,  10;  Deeds,  2,  3;  Estates  of  Decedents. 


Index,  973 

witnesses. 

1.  WiTNlcssBS  UA7  BE  COMPELLED  B7  State  to  attend  coTirt  and  give  their 

evidence  without  compensation.     Bennett  v.  Kroth,  248. 

2.  Witnesses  on  Behalf  of  Defendant  Chaboed  with  Crime,  whom  h« 

requests  or  compels  to  attend  court,  are  entitled  to  recover  of  him  for 
their  services  as  such  witnesses.     Id. 

8.  Witness,  Who  is  Sworn  and  Gives  Some  Evidence,  however  Formal, 
13  TO  BE  Considered  Witness  fob  All  Purposes,  and  is  subject  to 
cross-examination  open  all  matters  material  to  the  issue.  People  v. 
Barker,  501. 

4.  SuEViviNO  Party  to  Transaction  will  not  be  Permitted  to  Testift 
against  a  deceased  party  or  his  assignee  or  representative,  on  the  ground 
that  others  were  jointly  interested  with  the  decedent  in  the  transaction, 
if  none  of  them  participated  in  the  transaction,  or  are  able  to  testify 
concerning  it.     Harris  v.  Bank  of  JackaonmUe,  201. 

6.  Witness  does  not  Waive  his  Privilege,  nor  become  a  voluntary  wit- 
ness, by  answering  criminating  questions  without  objection,  or  protest, 
where  under  the  statute  he  is  obliged  to  answer.  He  is  not  required  to 
go  through  the  formality  of  an  objection  which,  however  made,  would  b« 
useless.     People  v.  Sharp,  851. 

6.  Witness  Testiftino  before  Committeb  of  Legislature,  with  respect 

to  a  charge  of  bribery  in  which  he  is  implicated,  must  be  regarded  as 
testifying  against  another  person  so  offending,  upon  a  "trial,  bearing, 
proceeding,  or  investigation,"  within  the  meaning  of  section  79  of  the 
Penal  Code.     Id. 

7.  Provision  that  No  Person  shall  be  Compelled  to  be  Wiiness  against 

himself  in  a  criminal  case  does  not  inhibit  the  enactment  of  a  statute  re- 
quiring  any  person  offending  against  the  statute  concerning  bribery  to 
attend  and  testify  as  a  witness  upon  any  trial,  hearing,  proceeding,  or 
investigation  agaunst  any  other  person  so  offending,  but  declaring  that 
"  the  testimony  so  given  shall  not  be  used  in  any  prosecution  or  proceed- 
ing, civil  or  criminal,  against  the  person  so  testifying  ";  and  further  de- 
claring that  a  person  so  testifying  to  the  giving  of  a  bribe  which  has  been 
accepted,  "  shall  not  thereafter  be  liable  to  indictment,  prosecution,  or 
punishment  for  that  bribery,  and  may  plead  or  prove  the  giving  of  testi- 
mony accordingly,  in  bar  of  such  indictment  or  prosecution. "    Id. 

8.  Witness  u  not  Privileoed  from  Answering  because  his  answer  would 

expose  him  to  disgrace  and  infamy,  if  the  case  is  so  situated  that  he  can- 
not be  tMcposed  to  the  danger  of  conviction  and  punishment,  with  respect 
to  the  matters  discloaed  by  his  answer.     Id. 
Bf  Attornxt  Aia>  Clxxmt,  4;  CoNffrmrnoNAi.  Law,  16;  Criminal  Law; 
Dkkds,  13;  Evidkncb. 


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